House Republicans Question Labor Department's End-of-Term Plans

Committee leaders press for information about staffing and rulemaking agenda

Lisa Nagele-Piazza, J.D., SHRM-SCP By Lisa Nagele-Piazza, J.D., SHRM-SCP September 29, 2016

​Republican members of the House Education and the Workforce Committee sent a letter to Labor Secretary Thomas Perez on Sept. 20 asking him to disclose the Department of Labor's (DOL's) end-of-term rulemaking and staffing plans.

Committee Chairman John Kline, R-Minn., and three subcommittee leaders signed the letter, which raised concerns about the department engaging in "midnight rulemaking" before President Barack Obama's term expires on Jan. 20, 2017.

They asked Perez to provide by Oct. 4 a list of all draft and final rules and regulations, as well as any guidance the department plans to release between now and the end of the president's term.

There is a general concern that every administration tends to sneak something in toward the end of the term, explained Michael Lotito, an attorney with Littler in San Francisco and co-chair of the Workplace Policy Institute, the firm's government affairs branch.

"When looking at the regulatory changes and decisions issued during this administration, there is no question that it has been among the most worker and union friendly administrations in history," which has caused challenges for HR professionals, Lotito said.

Midnight Rulemaking

The committee members' letter cited a Congressional Research Service (CRS) report that said "an outgoing administration has less political accountability compared to an administration faced with the possibility of reelection."

Furthermore, "rules that are hurried through at the end of an administration may not have the same opportunity for public input," the report cautions.

"While the CRS report is not inaccurate, much of this may be election year grandstanding on the part of the chairman," said Rick Grimaldi, an attorney with Fisher Phillips in Philadelphia and Washington, D.C.

In part, Kline was likely driven by frustration over the administration's history of using rulemaking to impact the American workplace and circumventing congressional inaction, Grimaldi added.

He said examples include the federal overtime rule, exemptions for unions to the Affordable Care Act employer tax, as well as the increase in minimum wage and pay transparency for federal workers.

Additionally, the department issued a final rule on Sept. 29 regarding mandatory paid sick leave for workers on federal contracts.

"To the extent there is concern about additional rulemaking, likely it revolves around pension and Employee Retirement Income Security Act issues, which are on the DOL's current regulatory agenda," Grimaldi mentioned.

Lotito noted that the department has much more leeway to issue guidance than to engage in formal rulemaking.

Wage and Hour Division Administrator David Weil has talked about issuing guidance on de minimis off-the-clock work, he said.

This may affect employees who are currently exempt from the Fair Labor Standards Act's overtime provisions but will be converted to nonexempt status as a result of the new overtime rule.

Those employees are accustomed to checking work e-mails and sending text messages outside of office hours, Lotito noted. HR professionals are concerned about what impact the overtime rule will have on these practices.

The letter focuses on federal matters, Lotito said, but HR professionals must also keep up to date and compliant with regulations at the states and local levels. Laws regarding predictable scheduling, paid sick leave and parental leave that have passed at the state and local level may be an indication of what to expect at the federal level in the near future.

'Burrowing In'

The committee leaders also raised concerns about "burrowing in" or converting employees in politically appointed positions to career positions in the executive branch.

The House Republicans asked for information about how many positions were—or will be—created in the department in 2016. They also want information about the individuals who filled those positions.

"We will do everything we can to ensure [the DOL doesn't] spend the next few months working behind closed doors to cement the administration's extreme, partisan agenda," Kline said in a press statement.

In addition to Kline, subcommittee chairs Virginia Foxx, R-N.C.; David Phillip "Phil" Roe, R-Tenn.; and Tim Walberg, R-Mich., signed the letter.


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