A Return To Rule By Guidance Document?
In a step backward for due process, the Biden Department of Labor has revoked a Trump‐era policy meant to rein in the use of informal guidance documents to issue regulatory commands. Per Allen Smith at the Society for Human Resource Management, this raises the likelihood that the department will move to reshape the American workplace through a rapid “stream of informal guidance” intended to be received as binding. These snap edicts, unlike more formal regulations, can be issued without the period of notice and comment that often allows employers or other regulated parties to organize against an initiative, publicize its burdens, alert allies in Congress, and lay out a factual and legal record that can serve to challenge the agency’s rationale in court:
“The Trump administration also was concerned about how the DOL was using subregulatory guidance in individual enforcement actions,” [Nathan] Oleson [of Akin Gump] said. This was particularly the case with informal guidance on wages and hours as well as occupational safety and health.”
In some cases, investigators were pointing to DOL guidance that was characterized as a recommendation and demanding that it be followed if the employer wanted to avoid an enforcement action,” he said. “Although subregulatory guidance does not have the force and effect of law, many employers felt compelled to accept the DOL’s position because of the risk posed by litigation or further enforcement action.”
February 23, 2021
