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BUSINESS Self police state, part I

The Administration’s workplace regulatory strategy? by E. Ray Stanford

This first of a two-part article offers examples of the Administration’s go-it-alone actions.

Despite Congressional gridlock, the Administration has increasingly turned to go-it- alone means to impose greater legal workplace restrictions. While differences between the House and Senate prevented the enactment of any meaningful work- place law in 2012, the Executive branch used a variety of strate- gies to add additional worker protections.

The second part (in the Jan/Feb 2013 issue) will explore the impact that the Administration’s unilateral regula- tions may have on the workplace and ways to deal with the new workplace mandates.

In addition to execu- tive orders and regula- tion, the Adminis- tration employed “administrative inter- pretation,” regulatory “guides,” mothballed rule-making, political reversals of existing

practices, disregard of existing law, and unilateral pronouncement of pending bills to roll out new regulatory devices ranging from mandated post- ing of union rights and e-verify to a new defini- tion of rape and a ban on removal of paper from the workplace.

Te Administration’s use of unilateral regulation, guidelines and other pronouncements of work- place directives has been undertaken without funding, bi-partisan support, and, on occasion, legal authority. With questionable legal justifica- tion, the Administration has turned to a type of self-policing to implement the Administration’s new workplace directives. To achieve its new mandates, the Administration ushered in new standards of care for lawsuits, self-reporting requirements, and a spate of new whistleblowing rights.

Executive orders 34

For more than 60 years, presidents have used executive orders to advance workplace protec-

tions against discrimination. From Franklin D. Roosevelt through Richard M. Nixon and Jimmy Carter, presidents strengthened the federal com- mitment to equal employment opportunity by setting higher standards for federal contractors. In 1941, Roosevelt issued an executive order that forbade discrimination against any worker because of “race, creed, color or national origin” by companies receiving government defense contracts and vocational training programs - two decades before Congress passed the Civil Rights Act of 1964 outlawing private sector employment discrimination based on race, color, religion, sex or national origin.

President Obama has issued ~140 executive orders through September 25, 2012. His 2012 ex- ecutive orders included a directive for all federal contractors to post notices outlining a worker’s rights under the National Labor Relations Act. A federal court has stayed enforcement of the order.

Administrative “interpretation”

On March 24, 2010, the Department of Labor (DOL) announced through an Administrator Interpretation (AI) that a mortgage loan of- ficer would no longer be exempt under FLSA. In altering the exempt status of a mortgage loan originator, the DOL rescinded a prior designa- tion adopted by the Bush Administration.

In the past, the DOL typically altered a regula- tory position through rule-making or opinion letter. Rule-making is a broad pronouncement of policy applicable to all regulated employers and employees. Te rule-making process invites the public to make comments about a proposed regulation and typically results in the agency modifying the proposed regulation before issu- ing the final rule. An opinion letter is used to re- solve a more narrow issue involving a designated party(ies) and applicable to the party(ies).

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