DOL Regulation Revisions Expected March 2014

The U.S. Department of Labor’s (DOL) fall regulatory agenda published on November 26, 2013 announced the move to revise two employment regulations as soon as March 2014.

The DOL will revise the Family and Medical Leave Act’s definition of “spouse” in response to the U.S. Supreme Court’s decision in United States v. Windsor, which found the section of the Defense of Marriage Act (DOMA) prohibiting same-sex married couples from accessing federal benefits unconstitutional. (U.S. 2013). Currently, the FMLA defines “spouse” only as opposite-sex marital partners. The DOL will bring this definition in line with Windsor.

The DOL will also revise the “Persuader Rule” under the Labor-Management Reporting and Disclosure Act (LMRDA). The Persuader Rule would expand the reporting requirements under the LMRDA. The act requires employers to report certain activities when an employer hires a labor relations consultant to give advice and counsel when employees are attempting to unionize the workplace. If the consultant engages in persuader activities that go beyond the plain meaning of “advice,” even if the consultant has no direct contact with workers, the employer must report this activity. The new rule would broaden the scope of reportable activities by substantially narrowing the DOL’s interpretation of “advice” as defined in the LRMDA. The final rule would greatly expand the types of union-related activities that would trigger reporting requirements, including multi-employer seminars or webinars, and could have a drastic impact on the confidential nature of the attorney/client relationships if an attorney is acting as the labor consultant.