Department of Labor Compliance News & Resources
The U.S. Department of Labor (DOL) exists to help ensure the welfare of workers, job seekers, and retirees as well as acceptable working conditions, benefits, rights, and profitable employment. It’s impact on you as an employer is crucial, so we have compiled DOL workplace news and resources to help you stay on top of what’s happened so far this year.
If you’re looking specifically for occupational safety, be sure to check out the OSHA page.
Be sure to seek legal counsel when you’re looking for how these changes will directly impact your business.
Past DOL Workplace Compliance News
Who: Federal contractors and subcontractors
When: Effective immediately
On January 20, 2023, the Office of Federal Contract Compliance Programs (OFCCP) released its 2023 Corporate Scheduling Announcement. The list notifies 500 supply and service establishments that they will be audited in the coming year.
All federal contractors and subcontractors should check to see if they have been selected for audit so they can prepare accordingly. There are different types of audits, including a full compliance review, corporate management compliance evaluation, and functional affirmative action program review.
How:
- Check the list to see if you’ve been selected for audit. Go to the website, choose FY 2023 CSAL Supply & Service Scheduling List, and download the Excel file. Check for your name there.
- Review your affirmative action programs and other regulatorily required documents and postings to ensure compliance.
Additional Resources:
2023 Corporate Scheduling Announcement List
Office of Federal Contract Compliance Programs Events Calendar
Corporate Scheduling Announcement List (CSAL) Frequently Asked Questions
Who: All employers
When: Effective immediately
Effective January 17, 2023, civil penalties for Occupational Safety and Health Act (OSHA) violations increased based on cost-of-living adjustments. The maximum penalty for serious and other-than-serious violations increased from $14,502 to $15,625 per violation. The maximum penalty for willful or repeated violations increased from $145,027 to $156,259 per violation.
How:
- Review the OSHA penalty page for more information.
Additional Resources:
Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2023 Final Rule
Who: All employers
When: Effective immediately
The U.S. Department of Labor (DOL) created a new website that helps explain workplace protections for workers who have cancer or have family members with cancer. The website has information about:
- The federal Family and Medical Leave Act (FMLA);
- Relevant state FMLA and disability laws;
- Accommodation under the Americans with Disabilities Act (ADA);
- Paid sick leave policies; and
- Discrimination prohibitions.
The new resources include a guide for talking to an employer about taking time off for medical and family reasons, guidance for employers on how to have FMLA discussions with employees, and a flyer for healthcare providers that explains FMLA rules about medical certifications.
How:
- Share the new resources with managers and HR personnel.
Additional Resources:
Who: Federal government contractors
When: Effective January 1, 2023
Under Executive Order 14026, the minimum wage for employees of federal contractors will increase from $15.00 per hour to $16.20 per hour to keep pace with inflation. The minimum wage for covered tipped employees will increase from $10.50 per hour to $13.75 per hour. The change applies to federal contracts entered into after January 30, 2022, and existing contracts extended or renewed after that date.
Executive Order 13658 may apply to federal contracts renewed or extended prior to January 30, 2022. EO 13658 has lower minimum wage requirements than EO 14026. Effective January 1, 2023, the applicable minimum wage is $12.15 per hour and $8.50 per hour for tipped employees.
Once they are released, employers must post the notices that explain Worker Rights Under Executive Order 14026 and Worker Rights Under Executive Order 13658 in the workplace.
How:
- Monitor for the release of the Worker Rights Under Executive Order 14026 and the Worker Rights Under Executive Order 13658 posters and post them once they are released.
Additional Resources:
Who: All employers
When: Comments due December 13, 2022
On October 13, 2022, the U.S. Department of Labor (DOL) published a proposed rule that revises its guidance on how to determine if a worker is an independent contractor or an employee under the federal Fair Labor Standards Act (FLSA). Comments from the public were originally due on November 28, 2022, but the DOL extended the due date until December 13, 2022.
Currently, employers use the 2021 Independent Contractor Rule, which takes into account the following factors, with the first two factors being weighted most heavily:
- The worker’s opportunity for profit or loss;
- The nature and degree of the employer’s control over the work;
- The degree of permanence of the working relationship; and
- The extent to which the worker’s duties are an integral part of the employer’s business; and
- The level of skill and initiative required to do the work;
The proposed rule would rescind the 2021 rule and implement a multifactor, totality-of-the-circumstances test that considers several factors, with all of them being weighted equally:
- The worker’s opportunity for profit or loss depending on managerial skill;
- The relative investments by the worker and employer;
- The degree of permanence of the working relationship;
- The nature and degree of the employer’s control over the work;
- The extent to which the worker’s duties are an integral part of the employer’s business; and
- Whether the worker brings specialized skills to perform the work in connection with business-like initiative.
The proposed rule will likely result in a number of independent contractors being reclassified as employees, which would have a significant economic and administrative impact on many employers.
How:
- Submit your comments electronically at Regulations.gov.
Additional Resources:
Employee or Independent Contractor Classification Under the Fair Labor Standards Act
Who: Federal contractors and subcontractors
When: Objections due by October 19, 2022
The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has extended the deadline for objections to the release of Type 2 EEO-1 data. The request is for federal contractors’ and subcontractors’ data for the years 2016 to 2020. The deadline has been extended from September 19, 2022, to October 19, 2022.
Employers may submit their objection via the OFCCP Submitter Notice Response Portal or by email at OFCCPSubmitterResponse@dol.gov by October 19, 2022. If an employer does not submit an objection, the EEO-1 data will be disclosed in accordance with the FOIA request.
How:
- Submit your objection via the OFCCP Submitter Notice Response Portal or by email by October 19, 2022.
Additional Resources:
Who: Federal contractors that filed Type 2 Consolidated EEO-1 Reports at any time from 2016 to 2020
When: Objections due by September 19, 2022
The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) received a Freedom of Information Act (FOIA) request for all Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO-1 Report), filed by federal contractors or subcontractors from 2016 through 2020.
The OFCCP stated that it has reason to believe that the information requested is protected under FOIA Exemption 4, but has not yet determined whether this is so. Therefore, it is requesting that affected entities that have an objection to the release of their data submit the objection by September 19. Exec. Order No. 12600 §5, but has not yet made a determination. If an employer objects to the disclosure of its EEO-1 information, it is “required to submit a detailed written statement as to why the information is a trade secret or commercial or financial information that is privileged or confidential.”
The agency carefully considers timely filed objections prior to deciding whether the requested information should be disclosed or withheld. The agency may decide that disclosure is appropriate notwithstanding the objection. If so, the agency will provide the employer written notice of the reason for the decision and the date the information will be disclosed.
Employers may submit their objection by email at OFCCPSubmitterResponse@dol.gov by September 19, 2022. If an employer does not submit an objection, the EEO-1 data will be disclosed in accordance with the FOIA request.
How:
- Email your objection to OFCCPSubmitterResponse@dol.gov by September 19, 2022.
Additional Resources:
Who: Private employers with 50 or more employees
When: Effective immediately
What: On May 25, 2022, the U.S. Department of Labor (DOL) released guidance on mental health leave under the Family and Medical Leave Act (FMLA) in the form of “Fact Sheet #280: Mental Health Conditions and the FMLA” and a website for Mental Health and FMLA frequently asked questions. The guidance states that employees are entitled to FMLA leave for themselves or to care for a spouse, child, or parent for a mental health condition that qualifies as “serious health condition.”
Serious health conditions are those that require 1) inpatient care or 2) continuing treatment by a health care provider. Conditions that require continuing treatment are defined as those that:
- Incapacitate an individual for more than three consecutive days and require ongoing medical treatment (multiple appointments, or a single appointment with follow-up care); and
- Are chronic, cause occasional periods of incapacitation, and require treatment by a health care provider at least twice a year.
The Fact Sheet gives examples of when leave for mental health conditions are covered under the FMLA. The examples are related to the employee’s own mental health condition, when the employee cares for a family member under the age of 18 who has a mental health condition, and when the employee cares for a family member over the age of 18 with a mental health condition.
The fact sheet also explains that under the FMLA, serious illness or injuries for veterans include those incurred or aggravated while on duty and those “incurred or aggravated during military service but that did not manifest until after the veteran left duty,” such as depression and post-traumatic stress disorder (PTSD).
Employers are prohibited from retaliating against employees who exercise their right to take job-protected FMLA leave for mental health. Employers must keep employee medical records separate from personnel files.
How:
- Ensure your FMLA leave policies and practices comply with the law.
Additional Resources:
Who: All employers
When: Effective July 1, 2022
What: Starting July 1, 2022, the Transparency in Coverage (TiC) rules require employer-provided group health plan sponsors to disclose cost-sharing information for items and services provided by in-network and out-of-network providers. The purpose is to help insureds know what the cost of an item or service is before incurring it. The rules are being implemented in three phases, with Phase One becoming effective July 1, 2022.
In Phase One, sponsors must post-hospital pricing information publicly in two machine-readable files (MRFs). The files must be accessible to anyone, be free of charge, and be available without conditions, such as setting up login credentials. The MRFs must be updated monthly.
One MRF must contain the plan’s negotiated rates for covered items and services for all in-network providers. For each coverage option, the file must include:
- The name and identifier (e.g., HIOS);
- Each billing code (e.g., CPT), with a plain-language description of the code; and
- All applicable rates, including negotiated rates, fee schedule rates, or derived amounts.
The second MRF must contain the plan’s negotiated rates for out-of-network providers. It must disclose for each coverage option:
- The name and identifier (e.g., HIOS);
- Each billing code (e.g., CPT), with a plain-language description of the code; and
- Unique out-of-network allowed amounts for each out-of-network provider, an identifier (e.g., NPI), and billed charges for services or items during the 90-day period beginning 180 days before the publication date of the file.
When there are fewer than 20 claim payments for a particular billing code, the data should be omitted.
Insured group health plans may satisfy the disclosure requirement by entering into a written agreement with the insurance issuer that the issuer will disclose the required information. In such cases, employers are not required to disclose the information on their own site or post a link to the carrier’s disclosure website.
The TiC rules allow an insured or self-insured group health plan or insurance issuer to contract with a third-party administrator (TPA) to disclose the information. In these cases, the employer must post a link on its public website to the TPA website where the files are posted. If the TPA violates the disclosure requirements, the group health plan or issuer (whoever entered into the contract) is in violation.
How:
- Create a plan to support the machine-readable file requirements of the transparency rules.
Additional Resources:
U.S. Department of Labor FAQs About Affordable Care Act Implementation Part 53
Who: All employers with federally funded or assisted construction projects
When: Comments due by May 17, 2022
What: On March 18, 2022, the U.S. Department of Labor (DOL) published a Notice of Proposed Rulemaking related to Davis-Bacon Act regulations as they apply to wages paid to workers on federally funded or assisted construction projects. Comments on the proposed rule are due by May 17, 2022.
The Davis-Bacon Act is to ensure workers on federally funded or assisted projects are paid local prevailing wages during the contract period. If passed, the amendments would help provide higher wages to those workers. The proposed amendments would revert to a previous definition of “prevailing wage” and make various changes that would improve the DOL’s ability to administer and enforce Davis-Bacon labor standards more effectively and efficiently.
How:
- Submit comments on the proposed rule at regulations.gov by May 17, 2022.
Additional Resources:
Notice of Proposed Rule Updating the Davis-Bacon and Related Acts Regulations
Who: All employers
When: Effective immediately
What: On March 10, 2022, the U.S. Department of Labor’s Wage and Hour Division released new resources to help combat retaliation by employers against employees who exercise their right to report violations of labor laws. Those resources are:
- A Wage and Hour Anti-Retaliation website;
- A field assistance bulletin titled “Protecting Workers from Retaliation”; and
- A presentation titled “Unlawful Retaliation under the Laws Enforced by the Wage and Hour Division.”
Retaliation can take many forms: exclusion from regularly scheduled meetings, a reduction in work hours, termination, and everything in between. Fear of employer retaliation often prevents workers from reporting violations of the law, participating in an investigation, or asserting their workplace rights. The DOL published the new resources as part of their commitment to prevent retaliation and uphold worker rights.
The guidance gives specific examples of unlawful retaliation under the Fair Labor Standards Act (FLSA), the Family Medical and Leave Act (FMLA), and visa programs. Such examples include sending an employee home early without pay for attempting to exercise her right to pump breast milk at work, assigning penalty points to days missed under FMLA leave, and threatening to deport workers unless they destroy their time records.
How:
- Ensure your anti-retaliation policies and training materials are up to date.
Additional Resources:
Wage and Hour Anti-Retaliation Website
Protecting Workers from Retaliation Field Assistance Bulletin No. 2022-02 (March 10, 2022)
Unlawful Retaliation under the Laws Enforced by the Wage and Hour Division (Presentation)
Who: All employers
When: Effective immediately
What: On March 14, 2022, Judge Marcia Crone of the U.S. District Court, Eastern District of Texas, reinstated the Trump Administration’s Independent Contractor Rule that the Biden Administration had previously rescinded. The rule seeks to clarify who is and is not an independent contractor for purposes of the Fair Labor Standards Act (FLSA). The rule was originally slated to become effective on March 8, 2021. The Biden Administration delayed the effective date until May 7, 2021, and then rescinded the rule on May 6, 2021.
Overall, the rule favors the classification of workers as independent contractors. The Biden Administration stated that the rule didn’t meet the well-established, multi-factor economic realities test that the courts have been using to determine a worker’s status employee versus independent contractor.
The March 14, 2022, U.S. District Court ruling stated that the delayed implementation of the rule and the rescission of the rule violated the Administrative Procedures Act (APA). The judge said that the Biden Administration failed to give proper notice and allow for the required comment period. Therefore, the Independent Contractor Rule is reinstated and is effective as of March 8, 2021.
How:
- Monitor the U.S. Department of Labor website for published guidance and possible future withdrawal of the rule.
Additional Resources:
Department of Labor Independent Contractor Status Under the Fair Labor Standards Act
Department of Labor Fact Sheet 13: Employment Relationship Under the Fair Labor Standards Act (FLSA)
Who: All employers
When: Effective immediately
What: Effective January 15, 2022, the Department of Labor (DOL) increased the maximum civil penalties for violations to account for inflation. Penalties for certain violations of employee notice and posting requirements have increased as follows:
- $189 for failing to correctly post the Family and Medical Leave Act (FMLA) notice;
- $14,502 for failing to correctly post the Job Safety and Health: It’s the Law (Occupational Safety and Health Act) notice; and
- $23,011 for failing to correctly post the Employee Polygraph Protection Act (EPPA) notice.
Employers must post the current version of each notice, and in the correct location. Employers must ensure they are meeting the posting requirements for each poster. For example, the FMLA poster, Equal Employment Opportunity poster, and Employee Polygraph Protection Act poster must be visible to all applicants.
Note that the DOL released guidance that states a link to the posters on a company website does not negate the need to physically post notices in a conspicuous location in the workplace. Hosting the posters on a website is considered a supplementary method of communication only.
How:
- Ensure your DOL posters are up to date and posted in the correct location.
- Review your procedures to determine whether you are notifying all applicable employees and/or applicants, per the requirements for each poster.
Additional Resources:
Department of Labor Workplace Posters
Department of Labor Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2022
Who: Covered federal contractors and subcontractors
When: Effective immediately
What: Previously, the Office of Federal Contract Compliance Programs (OFCCP) did not have a way to monitor federal contractors’ compliance with the requirement that they have an affirmative action plan (AAP). To remedy that, it launched an online Contractor Portal on December 2, 2021. Contractors may begin registering for access to the portal on February 1, 2022. Beginning March 31, 2022, contractors must use the portal to certify their AAP compliance, which is due by June 30, 2022.
How:
- Review your compliance practices with regard to AAP requirements.
- Register for Contractor Portal access.
- Monitor the OFCCP website for a user guide and how-to videos.
Additional Resources:
Who: Federal government contractors
When: EO 13658 effective January 1, 2022; EO 14026 effective January 30, 2022
What: On September 15, 2021, the U.S. Department of Labor (DOL) Wage and Hour Division published Executive Order 13658, which increases the minimum wage for contract workers who perform work on or in connection with covered federal contracts. As of January 1, 2022, employers must pay contractors a minimum of $11.25 per hour, an increase from $10.95. EO 13658 also stipulates that employers must pay tipped employees who work on covered contracts a minimum of $7.90 per hour. These minimums apply to covered contracts entered into prior to January 30, 2022.
On November 22, 2021, the DOL published Executive Order 14026, a final rule titled, “Increasing the Minimum Wage for Federal Contractors.” The rule provides for an increase in the minimum wage for federal contract workers for covered contracts that are entered into, renewed, or extended on or after January 30, 2022. For those contracts, the minimum wage for federal contractors will increase to $15.00 per hour. Thereafter, the Secretary of Labor will determine the amount of the annual increase in the minimum wage for federal contractors.
How:
- Update your payroll system to reflect the new minimum wage effective January 1, 2022, and January 30, 2022, as it applies to your contract dates.
- Monitor for the release of a new Workers Rights Under Executive Order 13658: Federal Minimum wage for Contractors poster on the U.S. Department of Labor website, and post when available.
Additional Resources:
Executive Order on Increasing the Minimum Wage for Federal Contractors (April 27, 2021)
Increasing the Minimum Wage for Federal Contractors (January 30, 2022)
U.S. Department of Labor Side-by-Side Comparison of EO 13658 and EO 14026
Who: All employers
When: Effective immediately
What: The U.S. Department of Labor has redesigned and relaunched its Employer Assistance and Resource Network on Disability Inclusion (EARN) website. The new site focuses on the four basic components of the employment lifecycle—recruitment, hiring, retention, and advancement—and explains how employers meet their workplace diversity, equity, inclusion, and accessibility goals by including people with disabilities. The site offers employers many resources related to disability inclusion: checklists, online training, policy guides, and videos.
How:
- Visit the new website to explore the resources available to you.
Additional Resources:
Employer Assistance and Resource Network on Disability Inclusion (Statement of Purpose)