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Don’t Call it a Comeback: The Department of Labor’s “Right to Know” Regulations

A notice published by the Department of Labor (DOL) earlier this month may be an indication that the agency is turning its attention back to its controversial “Right to Know” regulations, which had many employers up in arms when they were originally announced more than two years ago.

The Right to Know initiative first appeared in the DOL’s Spring 2010 Semi-Annual Regulatory Agenda as part of the agency’s much publicized “Plan / Prevent / Protect” compliance strategy.  The purpose of the initiative was to revise the recordkeeping regulations under the Fair Labor Standards Act (FLSA) to address the issue of “worker misclassification” (e.g., employers improperly classifying employees as independent contractors, or non-exempt employees as exempt). Under the revised regulations, employers would be required to provide independent contractors and exempt employees with notice regarding their status and whether they were entitled to the protections of the FLSA.

A Notice of Proposed Rulemaking (NPRM) on the Right to Know regulations was initially scheduled to be issued in August 2010, but was subsequently postponed.  Then, with the Presidential election looming, the status of the regulations was changed from “proposed” to “long-term action,” effectively putting the initiative on the back burner.

Now, with President Obama’s second term officially underway, the DOL may be ready to move forward on the regulations.  On January 11, 2013, the DOL published a notice in the Federal Register requesting public comment on the agency’s proposal to design and administer a survey to “measure workers’ knowledge about their current job classification, and their knowledge about the rights and benefits associated with their job status.” Although Right to Know is not expressly mentioned in the January 11th notice, the DOL’s announcement is a clear signal that the regulations are back on the agency’s agenda.

However, the proposed regulations may not be as imminent as some had predicted. While many experts expected to see proposed regulations early in President Obama’s second term, the DOL’s proposed survey is scheduled to run for a period of 30 months, through March 2014, and it seems unlikely that the agency would issue an NPRM prior to its completion. 

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided any links that might be referenced above for information purposes only and by doing so, does not adopt or incorporate the contents.