Labor Agencies’ Regulatory Agendas

As my colleague Wayne Crews comments in Forbes, the Obama administration tends to publish its regulatory agenda around holidays, or when “nobody is looking.”

And in predictable fashion on the day before Thanksgiving last week, the Office of Information and Regulatory Affairs (OIRA) published the Fall 2013 Unified Agenda of Federal Regulatory and Deregulatory Actions, a semi-annual report on the regulatory priorities of federal agencies.

In its statement of regulatory priorities, the Department of Labor lists the following:

  • Workers to acquire the skills they need to succeed;
  • Employers to have the skilled workforce required to compete in a global economy;
  • Employees to earn a fair day’s pay for a fair day’s work;
  • Veterans to thrive in the civilian economy;
  • Persons with disabilities to contribute productively to the workforce;
  • Improved health benefits and a dignified retirement; and
  • Safe and healthy work environments, fully protected by anti-discrimination laws.

Yet of the 66 rules the DOL reports are coming down the pike, many have nothing to do with the agencies above stated priorities.

One example is the DOL’s “persuader rule” that will become final in March 2014. The regulation reinterprets the “advice exemption” provided in section 203(c) of the Labor-Management Reporting and Disclosure Act of 1959. Ultimately, this rule hinders employers from receiving legal aid about labor and employment law, not improve the well-being of employees.

Diana Furchtgott-Roth of the Manhattan Institute summarizes the impact of the DOL persuader rule:

The change involves a new interpretation of the “advice exemption” of the Labor Management Reporting and Disclosure Act. Specifically, businesses would have to disclose the names of, and fees paid to, attorneys and consultants who advise them on union-organizing activities. In turn, attorneys and consultants providing such advice would be required to disclose their client lists and the fees they receive.

In addition, notes:

The DOL’s proposal was written so broadly that the agency could end up going after companies who hire anyone who advises them on almost anything related to employees that could “indirectly” affect employees in the exercise of their rights under the National Labor Relations Act.

While the DOL may be proposing and seeking to finalize rules that contradict its stated regulatory priorities, the National Labor Relations Board didn’t even submit a regulatory agenda. Yet according to OIRA, the NLRB does have plans to regulate.

The NLRB is still pushing forward with its “ambush” election rule. The KL Gates law firm notes ambush elections would “dramatically shorten the time between the filing of a union election petition and the election by curtailing the ability of employers to be heard on pre-election and post-election disputes.”

Even though the NLRB maintains that the promulgation of the ambush election rule is “to be determined,” that is only because of a successful U.S. Chamber of Commerce lawsuit hindered the implementation of the NLRB’s 2011 ambush election rule. Once this lawsuit is settled, the NLRB will finalize the its new union election rule as soon as possible.

However, this is par for the course under the Obama administration, where the DOL’s and NLRB’s real priorities are providing advantages to unions rather than fostering positive labor-management relations.