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Regulatory Developments

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Last week, the Obama Administration announced plans to issue regulations implementing changes to the Family and Medical Leave Act (FMLA) enacted into law back in 2008, extended the comment period on a proposal altering federal contractor affirmative action requirements under Section 503 of the Rehabilitation Act, and withdrew a proposal requiring organizations doing business with the U.S. Department of Agriculture (USDA) to certify they are in compliance with all workplace statutes.

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As originally drafted, the USDA proposal would have required every federal contractor doing business with the USDA to certify that they, along with all their subcontractors and suppliers, are in compliance with all applicable labor laws. It is believed the USDA proposal is part of an Obama Administration effort called “High Road Contracting” that would seek to modify the Federal Acquisition Regulations (FAR) to take into account an organization’s compliance (alleged and actual) with tax, labor and employment laws before awarding a federal contract.   The USDA proposal required contractors to report allegations of non-compliance with labor laws. If the USDA rule had gone forward, it would have exposed SHRM members holding contracts with USDA to serious penalties including possible debarment in response to alleged labor law violations. 

Prior to the agency’s decision to withdraw the proposal,SHRM submitted comments in conjunction with the College and University Professional Association for Human Resources (CUPA-HR) strongly opposing the proposed regulation arguing that it was vague, unjustified, impossible to comply with, and would do nothing to improve the quality of federal contracts.  SHRM’s comments, along with those of other employer stakeholders, possibly led to the withdrawal of this rule. 

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On January 30, 2012, the U.S. Department of Labor announced new Family and Medical Leave Act (FMLA) rules.  The new proposed rules implement changes required by legislation, enacted into law in 2009 that affect both the military leave provisions and the application of certain FMLA provisions to airline flight crews.

SHRM, along with the coalition it chairs, the National Coalition to Protect Family Leave, played a leading role in the 2008 revisions to the FMLA regulations when the military provisions were first added.  SHRM’s focus at that time was to improve the most problematic portions of the FMLA rules—those governing the use of intermittent leave and how to calculate increments of leave under the rules.  In the newly-released proposed rule, DOL seeks to delete a key provision that was championed by SHRM and others in 2009 to address the problem of employees using FMLA leave as an excuse for chronic tardiness.  That provision that has been removed, allowed employers to record leave in the increment in which other leave is recorded provided that increment is no greater than one hour.  DOL cites “confusion” on the part of employers to justify deleting this important change and reverting to the previous scheme of calculating FMLA using the employer’s shortest increment of leave at any time, typically 6-minute intervals. 

SHRM plans to submit comment on this proposal which, as of press time, has yet to appear in the Federal Register.  Once drafted, we will be sharing these comments with our state councils and chapters and inviting them to participate in our efforts.

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Lastly, the Office of Federal Contract Compliance Programs (OFFCP) extended the deadline for comment on its proposal to alter federal contractors’ compliance with affirmative action requirements under Section 503 of the Rehabilitation Act.  Originally, comments were due February 7, 2012 but, in response to the requests of numerous organizations (including SHRM) the deadline for comments has been pushed back until February 21, 2012.

While SHRM strongly supports and encourages employers to hire individuals with disabilities, we have serious concerns about several elements of the proposed regulations. In particular, the rule would make several changes to current practice including requiring federal contractors to invite all job applicants to voluntarily self-identify as persons with disabilities, survey employee annually about their disability status, and annually review personnel policies to ensure compliance with affirmative action requirements.  In addition, the proposal requires that federal contractors set a goal of having 7 percent of their workforce comprised of persons with disabilities.


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