eTrends - 2009 Federal Regulatory Development Report (through December 31, 2009)


Directive on procedures for scheduling and conducting compliance evaluations of 
American Recovery and Reinvestment Act (ARRA) - funded contractors
On July 7, 2009 the OFCCP issued a directive outlining the procedures it will use to schedule compliance audits of companies (particularly in the construction industry) that receive stimulus funds under the ARRA. The directive notes that OFCCP is committed to transparency and accountability of ARRA spending; the agency intends to conduct compliance reviews on at least 450 ARRA-funded companies by September 30, 2010.  Revisions to the procedures were made on September 18, 2009.

Technical Assistance Guide for Federal Supply and Service Contractors and New Contractors’ Guide
In August 2009 the OFCCP released its technical assistance guide to aid federal contractors and subcontractors, and supply and service contractors, in complying with federal laws and regulations pertaining to prohibitions against discrimination in employment.  At the same time, OFCCP’s “New Contractors’ Guide” that describes laws enforced by the OFCCP was issued, to assist new contractors in understanding their EEO obligations.

Wage and Hour Division  

Administrator Opinion Letters: FLSA





Regular rate calculation of on-call compensation paid in a specific week



Substitute teachers and the teacher exemption under section 13(a)(1)



Charitable organization revenue included in annual revenue under section 3(s)(1)(A)



Cosmetology school instructors and the teacher exemption under section 13(a)(1)



Replacement of tipped employee’s uniform damaged during personal use



Assistant Athletic Instructors and the teacher exemption under section 13(a)(1)



Discretionary “stress pay” bonuses and section 7(e)(3)(a)



Volunteer emergency crew as separate and independent agency under section 3(e)(4)(A)



Paid firefighter performing volunteer firefighting services for the same private fire department



Stipends provided to volunteer firefighters of a political subdivision and nominal fees under section 3(e)(4)(A)



Victim Assistant Specialist volunteering as reserve police officer and receiving hourly pay under sections 3(e)(4)(A) and 7(p)(2)



Certified Occupational Therapist Assistants and section 13(a)(1)



Chefs who serve meals to customers and tipped employees under section 3(m)



Store managers in training for promotion and section 13(a)(1)



Employer provided training for state-mandated employee certification and compensable hours



Mandatory use of vacation time and section 13(a)(1) salary basis



Retroactive payment of overtime and the fluctuating workweek method of payment



Convention and visitors services sales manager under section 13(a)(1)



Life guards at town beach and section 13(a)(3)



Pilots and section 13(a)(1)



Ambulance personnel on-call time and hours worked



Plumbing sales/service technicians and section 7(i)



Helicopter pilots and section 13(a)(1)



Coaches and the teacher exemption under section 13(a)(1)



Catering services contractor at a recreational establishment and section 13(a)(3)



Barbacks as tipped employees and section 3(m)



Web-based classes taken at home as hours worked



Voluntary and mandatory time off policies and section 13(a)(1) salary basis



Time outside normal working hours completing assignments for city-required training programs as hours worked



Compressed two-week work schedule and section 7



Water service employees’ on-call time and compensable hours worked



Deductions from paid time-off plan and section 13(a)(1) salary basis



Transportation authority firefighters under sections 3(x), 3(y) and 7(k); attendance bonuses and vacation buy-backs under section 7(e)(2)



Enterprise coverage and joint employment with employee leasing company



Nondiscretionary safety bonus and section 7(e)



State minimum wage and tip credit under section 3(m)



Tip credit for dual jobs and related duties under section 3(m)



Premium pay for Sunday and holiday work and fluctuating-workweek method of payment



Salary deductions for full-day absences based on hours missed and section 13(a)(1) salary basis



Client service managers and section 13(a)(1)



Year-end non-discretionary bonus and section 7(e)



Insurance agents and section 13(a)(1)



Residential construction project supervisor and section 13(a)(1)



Job bonuses and section 7(e)



Consultants, clinical coordinators, coordinators, and business development managers under section 13(a)(1)



Fraud/theft analysts and agents under section 13(a)(1)



Calculation of salary deductions and section 13(a)(1) salary basis



Production demonstration coordinators and section 13(a)(1)



Volunteer fire company contracting for paid EMTs -joint employment and volunteer status



Construction supervisors employed by homebuilders and section 13(a)(1)


Administrator Opinion Letters: FMLA


Employee Notice and Call-In Procedures


Non-Administrator Opinion Letters: FLSA





Detention officers volunteering as reserve sheriff deputies and section 3(e)(4)(A)



Regular rate calculation for commission pay



Daycare center instructors and the teacher exemption under section 13(a)(1)



On-call period and hours worked



Commercial construction project superintendents and section 13(a)(1)



Regular rate calculation for fire fighters and alarm operators



Payment plan for nonexempt gasoline service station employees and section 7(f)



Regular rate computation as a percentage of project labor bid


*Per the Wage & Hour Division: Some of the posted opinion letters, as designated by asterisk, were not mailed before January 21, 2009. While the Wage and Hour Division is making these letters available to the requestor and to the public, the agency has decided to simultaneously withdraw these letters for further consideration. A final response to these opinion letter requests will be provided in the future.

Final rule regarding FMLA
On November 17, 2008 the Wage & Hour Division published its final rule for the FMLA, which, among other things, addresses military family leave entitlements that are part of the National Defense Authorization Act of 2008 – specifically, the rule allows eligible employees leave to care for a servicemember with a serious injury or illness incurred in the line of duty, and for “qualifying exigencies” arising from a servicemember’s active duty or call to active duty.  The rule took effect on January 16, 2009.

Federal minimum wage increase
Effective July 24, 2009, the federal minimum wage increased to $7.25/hr, the last of three annual increases mandated by the Fair Minimum Wage Act of 2007.

FAQs regarding the FLSA and the FMLA and pandemic flu
On November 6, 2009 the Wage & Hour Division published in Q&A format information relating to pay and leave issues under the FLSA and FMLA as they apply to flu-related issues. 


Employment provisions of the Genetic Information Nondiscrimination Act (GINA) proposed rule
On March 2, 2009 the EEOC published in the Federal Register a request for public comment on proposed regulations implementing GINA – specifically, the agency seeks comments on three of the six exceptions to the statute’s prohibitions against employer-acquired genetic information: i.e., the employer-provided wellness program exception (regarding what constitutes “voluntary”); the commercially and publicly available exception (regarding what should be included in this exception as pertains to blogs and social networking sites); and the law enforcement exception (regarding how the exception should be applied).  On August 6, 2009 the Commission approved the final version of the regulations, which awaits White House Office of Management & Budget (OMB) approval.
In related action, the EEOC published in the May 20, 2009 Federal Register a proposed rule to insert GINA references into some existing EEOC regulations pertaining to Title VII, the ADA and GINA. 

Employer best practices technical assistance document
On April 22, 2009 the EEOC issued “Employer Best Practices for Workers with Caregiving Responsibilities” which builds on the Commission’s 2007 guidance titled “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.” 

ADA-compliant preparedness for H1N1 technical assistance document
On May 4, 2009 the EEOC issued a short technical assistance document to assist employers in preparing ADA-compliant strategies for pandemic planning in the workplace. The guidance was updated in October 2009.

Waiver of discrimination claims technical assistance document
On July 15, 2009 the EEOC issued in a Q&A format “Understanding Waivers of Discrimination Claims in Employee Severance Agreements” to clarify waiver issues for both employers and employees.

Lilly Ledbetter Fair Pay Act-related Compliance Manual revisions
On August 3, 2009 the EEOC issued notice of revisions to its Compliance Manual sections on Compensation Discrimination, to comport with requirements of the Lilly Ledbetter Fair Pay Act.

Proposed regulations under the ADA Amendments Act 
On September 23, 2009 the EEOC published in the Federal Register its Notice of Proposed Rulemaking, with proposed regulations and interpretive guidance on the ADA Amendments Act of 2008.  The law, which went into effect on January 1, 2009, and the proposed regs broaden the scope of disability.

Revisions to Equal Employment Opportunity poster
Reflecting current federal discrimination law, including the ADAAA of 2008 and the GINA of 2008, the EEOC revised its “Equal Employment is the Law” poster. 

OSHA/Mine Safety and Health Administration

Proposed rule on alcohol- and drug-free mines
On September 8, 2008 the Mine Safety and Health Administration published in the Federal Register a proposed rule prohibiting the possession and use of intoxicating beverages and narcotics on mine property or while performing safety-sensitive jobs, and requiring mine operators to establish relevant written policies, and education and training programs.

Proposed rule on cranes and derricks
On October 9, 2008 OSHA published an extensive proposed rule (1,100+ pages) intended to protect construction employees from the hazards associated with hoisting equipment; per OSHA estimates, over 89 crane-related fatalities occur each year. The proposed rule requires that employers assess hazards and ensure safe operating conditions.

Final rule clarifying electrical installation standards
On October 29, 2008 OSHA published in the Federal Register a clarification of its February 2007 rule, making clear that the rule applies to “construction-like” activities and further clarifying both “temporary wiring” and ground-fault protection device issues. The rule took effect on October 29, 2008.

Final rule establishing employer duty to provide personal protective equipment (PPE) and training
On December 12, 2008 OSHA published a final rule to clarify that the requirements impose on employers a duty to provide each covered employee PPE and training, and that non-compliance with the requirement will expose employers to penalties on a per-employee basis.  The rule took effect on January 12, 2009.

Final rule establishing requirements for refuge alternatives for underground coal mines
On December 31, 2008 MSHA published a final rule establishing requirements for refuge alternatives for underground coal mines, thus improving mine operators’ preparedness for emergencies and providing refuge alternatives to protect miners trapped underground.  The rule took effect on March 2, 2009. [Note: the preamble to the final rule included a discussion on preemption of private tort litigation, which was corrected by the Agency and published in the November 25, 2009 Federal Register.]

Notice of proposed rulemaking regarding Respiratory Protection Standard
On January 21, 2009 OSHA published in the Federal Register a notice of proposed rulemaking and request for comments on revised fit-testing protocols under the Respiratory Protection Standard for determining the effectiveness of respiratory protection facemasks.  Specifically, the proposal contemplates adding two quantitative fit-testing protocols applicable to employers in general industry, shipyard employment and construction.
Interpretation Letter re Horseplay at Work
On February 9, 2009 OSHA issued an interpretation letter, ruling that employee injuries sustained in the work environment resulting from horseplay are recordable on OSHA logs if other general recording criteria are met.

Final rule for underground mine rescue teams
On June 17, 2009 the Mine Safety and Health Administration published in the Federal Register a final rule that amended existing standards for rescue teams, published February 2, 2008, pursuant to a U.S. Court of Appeals decision. The final rule requires mine-site and state-sponsored teams to train semi-annually, not annually, and requires state employees on state-sponsored teams to participate in two mine rescue contests annually. 

Final rule updating standards regarding Personal Protective Equipment (PPE)
On September 9, 2009 OSHA published in the Federal Register its final rule revising PPE sections of general industry, shipyard and longshoring and marine terminals standards regarding eye and face, head, and foot protective devices, to comport with more recent national consensus standards.

Proposed rule regarding combustible dust
On October 21, 2009 OSHA published in the Federal Register an advance NOPR to address fire and explosion hazards relating to combustible dust.  The public comment period extends to January 19, 2010.

Field Operations Manual revision
On November 9, 2009 OSHA released a revised Field Operations Manual (FOM). The FOM is a significant element of the increased focus on enforcement by OSHA, directed by DOL Secretary Hilda Solis.

Compliance directive regarding flu prevention for health care workers
On November 20, 2009 OSHA issued a compliance directive to address H1N1 flu prevention measures, attempting to ensure uniform procedures for conducting inspections and thus minimize the risk of occupational exposures to the virus.


General Counsel Guideline Memorandum Concerning St. George Warehouse
On October 3, 2008 NLRB General Counsel Ronald Meisburg issued a memorandum addressing the changed backpay mitigation burden (and resulting effect on regional offices involved in compliance proceedings) in light of the Board’s holding in St. George Warehouse—i.e., that the General Counsel shares the burden of production of evidence with the employer on the issue of whether an unlawfully discharged employee mitigated his losses by seeking interim employment.

General Counsel Guideline Memorandum Concerning Withdrawal of Recognition Based on Loss of Majority Support
On November 26, 2008 General Counsel Meisburg released a memorandum updating guidance it issued following the Board’s 2001 decision in Levitz Furniture Co. on the topic of employer’s lawful withdrawal of recognition of an incumbent union once the union has lost majority support in the bargaining unit.

Performance & Accountability Report-FY 2009
This report provides the NLRB’s audited financial statements and assesses the Agency’s performance against major objectives.

Employee Benefits Security Administration (EBSA)/ERISA

Pension Protection Act of 2006 final rules
On October 7, 2008 the EBSA published the following four final rules pertaining to the requirements of the Pension Protection Act of 2006 (PPA): amended rules relating to the distribution of benefits for missing nonspouse beneficiaries in terminated and abandoned individual account plans; issued two rules on selection of annuity providers (i.e., one limiting the application of the “safest available” annuity standard in Interpretive Bulletin 95-1 to defined benefit plans, and the second establishing a safe harbor for the selection of annuity providers by fiduciaries for distributions from individual account plans); and addressed cross-trading of securities between clients by implementing content requirements for written cross-trading policies and procedures required under ERISA.

Shareholder rights and investments interpretive bulletins released
On October 17, 2008 the EBSA published in the Federal Register new fiduciary guidance under ERISA (Interpretive Bulletins 08-1 and 08-2) clarifying earlier guidance relating to the obligations of plan fiduciaries in the exercise of shareholder rights and investing in economically targeted investments.

Final rules under the Newborns’ and Mothers’ Health Protection Act
On October 20, 2008 the EBSA and other departments published in the Federal Register final rules for group health plans and health insurance issuers pertaining to hospital lengths of stay for mothers and newborns following childbirth.

Final rule regarding civil penalties under ERISA 502 (c)(4) against plan administrators
On January 2, 2009 the EBSA published a final rule allowing the Secretary of Labor to assess civil penalties of $1,000/day against plan administrators who fail to disclose certain documents to pension and health plans participants and beneficiaries, as required by ERISA and as amended by the PPA. The rule took effect on March 3, 2009.

Model notices for COBRA subsidy under the American Recovery and Reinvestment Act (ARRA)
On March 20, 2009 the EBSA published in the Federal Register four model notices that allow employers to notify employees of the availability of COBRA premium reductions and additional election periods for health care continuation coverage, pursuant to the ARRA.  The notices may be found at  Guidance on appealing denials of COBRA subsidies was issued by the DOL on May 21, 2009.

Proposed rule regarding civil penalties under ERISA 502(c) (8)
On September 4, 2009 the EBSA published in the Federal Register a proposed rule allowing the assessment by the DOL of civil penalties of $1,100/day against plan sponsors of multiemployer plans that are in endangered or critical status.

Interim final rule prohibiting discrimination based on genetic information
On October 7, 2009 the EBSA published in the Federal Register interim final regulations, effective December 7, 2009, implementing provisions in the Genetic Information Nondiscrimination Act that prohibit discrimination based on genetic information in health insurance coverage and group health plans.

Withdrawal of final rule on investment advice
On November 20, 2009 the EBSA published in the Federal Register notice of withdrawal of the January 21, 2009 investment advice final rule under the Pension Protection Act (PPA) and issued a news release.  The rule, which pertained to investment advice to participants and beneficiaries in individual account plans and retirement plans, was withdrawn based on public comments. The DOL expects to publish a proposed rule that conforms to the PPA.

Immigration (USCIS and ETA)

Final rule increasing period of admission for TN visa holders
Effective October 16, 2008, Trade-NAFTA (or “TN”) workers from Canada or Mexico may remain in the U.S. for three years before requesting to extend their stay.  According to the USCIS, the change from one year to three years’ stay will benefit TN workers and their employers, making the initial period of admission equal to that of H-1B visa holders.
Final rule regarding H-2B temporary nonagricultural workers
On December 19, 2008 the ETA published in the Federal Register the final rule pertaining to the issuance of labor certifications to employers sponsoring H-2B workers performing temporary nonagricultural labor that is seasonal, intermittent, a one-time occurrence or a peak load need.  The rule, effective as of January 18, 2009, seeks to re-engineer the application filing and review process, adopting an employer-attestation model that allows employers to conduct pre-filing recruitment of U.S. workers; it further seeks to enhance the program’s integrity through post-adjudication audits and penalties for non-compliance.

Form I-9 revision
On February 2, 2009, the USCIS revised Employment Eligibility Verification Form I-9
(Rev. 02/02/09; effective date: 4/3/09), rendering the 6/5/07 version of the form invalid.  The new form is applicable to all new hires and to employees whose employment eligibility must be reverified on or after the 4/3/09 effective date. The most significant change is the requirement that all documents presented to the employer must be unexpired. In August, the OMB approved the use of the revised form through 8/31/12, and thus USCIS amended the form to reflect an 8/7/09 revision date. Employers may use either the 2/2/09 or 8/7/09 version.

New requirements for TARP-funded companies hiring H-1B workers
On March 20, 2009, the USCIS announced new requirements for the hiring of H-1B foreign workers by companies receiving Troubled Asset Relief Program (TARP) or Federal Reserve Act (FRA) section 13 funding.  Companies that received TARP or FRA funds and that seek to hire new H-1B workers must make additional attestations to the U.S. Department of Labor in the Labor Condition Application (LCA) filed on behalf of the foreign workers.  The requirements apply to LCAs or H-1B petitions filed on or after 2/17/09 involving any employment by a new employer, regardless of whether the worker is in H-1B status already.  In addition, the agency announced changes to Form I-129 also pertaining to TARP and FRA funding recipients.

Implementation of USCIS’s E-Verify system
On April 17, 2009 implementation of the regulation requiring federal contractors and subcontractors to use E-Verify to confirm employees’ eligibility to work legally in the U.S. was extended to June 30, 2009, to permit the Obama administration adequate time to review the rule.  Implementation was delayed again (the fourth delay since the initial January 15, 2009 effective date), to September 8, 2009, upon business coalition groups’ and government’s agreement that additional review time was needed. On July 8, 2009, Department of Homeland Security Secretary Janet Napolitano announced administration support for the regulation, thus confirming the September 8 effective date.
Final rule rescinding no-match rule
On October 7, 2009 the Department of Homeland Security published in the Federal Register its final rule rescinding the No-Match rule (which never was implemented due to a court order blocking its enforcement), thus reinstating the language of 8 C.F.R. 274.1(l). The final rule took effect on November 6, 2009.

Interim final rule regarding H-2A visa transition procedures
On November 17, 2009 the ETA published in the Federal Register an interim final rule to extend the transition period procedures relating to the H-2A (temporary agricultural workers) program to include all employers with a date of need before June 1, 2010, intending to ensure employers are fully informed as to whether they must use recruitment procedures under the December 18, 2008 Final Rule vs. the procedures from a final rule arising from the September 4, 2009 Proposed Rule.  This rulemaking has been a complex undertaking, but the DOL expects to issue a final rule in early 2010.


Fall 2009 semi-annual regulatory agenda
The Department of Labor’s semi-annual regulatory agenda was published in the
Federal Register on December 7, 2009. The Unified Agenda and Regulatory Plan for DOL agencies identifies items planned for review or development over the next 12 months.

Please contact Kim Korando with any questions.

Employment, Labor and Human Resources

Employee Benefits and Compensation

Environmental Health and Safety

Government Contracting


  • Alicia A. Gilleskie
  • Frederick R. Zufelt

Smith Anderson publishes eTrends periodically as a service to clients and friends. The purpose of this eTrends is to provide general information about a significant legal development in the field of employment law. Readers should be aware that the facts may vary from one situation to another, so the conclusions stated herein may not be applicable to the reader’s particular circumstances.

Reproduction in whole or in part is permitted
when credit is given to Smith Anderson.
©Copyright Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P. 2012


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