For the past two years or so, perhaps the most anticipated rulemaking in the wage and hour world has been what has been described at various times as the "FLSA Recordkeeping" or "Right-to-Know" rulemaking. As we have discussed previously on the blog, this expected regulation immediately drew the concern of the employer community when it was reported that it would require employers to prepare a written analysis of an employee’s exempt status under the FLSA, provide a copy of that analysis to the employee, and maintain a copy of that analysis for review by a Department of Labor Wage & Hour Division investigator. More recent descriptions call that initial report into question, but the concern remained.
As a result, the employer community has been following the rulemaking carefully. In the past several versions of the Department of Labor's Regulatory Agenda, the Wage & Hour Division set forth its anticipated timeline for issuing a proposal: first, August 2010; then, April 2011; then, October 2011. No proposed regulation has ever been published; nor does it appear that a proposal has ever even been formally submitted for review by the White House Office of Management and Budget's Office of Information and Regulatory Affairs.
Perhaps recognizing the difficulties of pursuing this controversial rulemaking in an election year, in the most recent Unified Regulatory Agenda (Fall 2011, published on January 20, 2012), the Department moved the "Right-to-Know" rulemaking from its current agenda* to a section designated "Long-Term Actions," which are described as "items under development but for which the agency does not expect to have a regulatory action within the 12 months after publication of this edition of the Unified Agenda." The "Next Action" for the rulemaking is undetermined, as is the next date for action.
Ultimately, there is no “Right-to-Know” rule in effect at this time, and DOL has now said that it does not expect to propose it before January 20, 2013. Given recent statements by Acting Administrator Nancy Leppink to BNA’s Daily Labor Report (subscription), however, the issue is not necessarily gone forever: “the proposal is one of WHD's priorities. ‘We're continuing to work on that regulation,’ she said, adding, ‘We're learning about what the issues are' from the ongoing misclassification enforcement initiative.”
We will continue to monitor the issue and keep you apprised of any developments.
[*] The current agenda for the Wage & Hour Division includes proposed rulemakings related to Youth Employment in Agriculture, amendments to the Family and Medical Leave Act, and theFLSA’s companionship exemption. In addition, the Wage & Hour Division indicates that it will be publishing a Request for Information regarding the se of power-driven hoisting apparatus by children under 18 years of age.
by Alex Passantino