By Barlow, Wayne E.
Personnel Journal , Vol. 74, No. 2
Within the last few years Congress has enacted a plethora of employment laws, each requiring careful review for their impact on the employment relationship. These laws regulate a host of issues, including: management-labor relations; benefits; wages, hours and terms and conditions of employment; leaves of absence; and the obligation to reasonably accommodate the disabled in the workplace. The list goes on and on.
Congress has, in most cases, instructed federal agencies to develop regulations regarding employee and employer rights and obligations under these new laws. Agencies then publish proposed and interim regulations, and it may take months--even years--for the regulations to become final.
Here, Wayne E. Barlow, a partner in the Los Angeles law firm of Barlow and Kobata, representing management in areas related to labor, personnel and employment, takes you through the process of developing interpretive regulations for a recently enacted law--from its assignment to a federal agency to where the agency publishes final regulations--and shows you how and why your company should 1 be part of the process.
What first happens after Congress enacts a law and asks a federal agency to create regulations?
Once Congress requires an agency to develop interpretive regulations, the federal Administrative Procedure Act (APA) provides that regulations are to be developed in accordance with a fact-finding technique known as notice and comment rulemaking.
The notice and comment sequence ensures that agency regulations will be subject to public comments. The process is intended to ensure that the public and persons regulated are given an opportunity to participate, provide information and suggest alternatives so the agency is educated about the impact of the proposed rule and can make a fully informed decision.
What steps must an agency follow in developing interpretive regulations?
First, a notice of the proposed rulemaking must be published in the Federal Register. The notice must include a statement of the time, place and notice of the public rulemaking proceedings, reference to the legal authority under which the rule is proposed, and either the terms or substance of the proposed rule or a description of the subject and issues involved.
After publishing the notice, the agency must give interested persons an opportunity to participate in the rulemaking through submission of written data or testimony at public hearings.
Following the period of public comment, the agency will then publish interim regulations. After publication of these regulations, the agency provides the public with another opportunity to comment before taking final action in the form of publication of the final rules.
Finally, the APA requires final regulations to be published in the Federal Register.
For what laws have federal agencies developed interpretative regulations that impact the employment relationship?
Within the recent past the following laws have been enacted: Worker Adjustment and Retraining Notification Act (WARN); Drug-Free Workplace Act of 1988; Employee Polygraph Protection Act of 1988; Americans with Disabilities Act (ADA); Family and Medical Leave Act of 1993 (FMLA); Civil Rights Act of 1991; and the Older Worker Benefit Protection Act amending the Age Discrimination in Employment Act.
In each of these laws, Congress has chosen a federal agency to develop regulations that explain and interpret the new law.
In addition to these laws, there are: the National Labor Relations Act and the Taft-Hartley Act (interpreted by the National Labor Relations Board); the Fair Labor Standards Act (interpreted by regulations developed by the U.S. Department of Labor); and the Occupational Safety and Health Act.
Are there examples of how the regulatory process works?
Take the FMLA. In the case of the Family and Medical Leave Act, Congress directed the U. …