October at-a-glance…regulations

White House requires federal agencies to reduce regulatory burdens

As part of ongoing efforts to encourage “fairness in administrative enforcement and adjudication,” the White House Office of Management and Budget (OMB) issued clarification on Section 6 of Executive Order 13924. “The memo was issued by the White House to all federal agency heads as part of President Trump’s regulatory relief and economic recovery initiatives around COVID-19,” said Jeff Longsworth, NAFEM legal counsel, Barnes & Thornburg.

To help agencies implement Section 6, OMB shared several best practices for consideration, including the following:

  • The government should bear the burden of proving an alleged violation of law, rather than the subject of enforcement having to prove compliance.
  • Administrative enforcement should be prompt and fair.
  • All rules of evidence and procedures should be public, clear and effective.
  • Penalties should be proportionate, transparent and imposed in adherence to consistent standards and only as authorized by law.
  • Liability should be imposed only for violations of statutes or duly issued regulations, after notice and an opportunity to respond.
  • Administrative enforcement should be free of unfair surprises.

The executive order requires agencies to issue any final rules needed to address the executive order for public comment by Nov. 26.

Dept. of Labor considers revising definition of independent contractors

The definition of an independent contractor versus an employee is under review by the U.S. Department of Labor (DOL). The proposed rule, “once finalized, will make it easier to identify employees covered under the Fair Labor Standards Act, while respecting the decision other workers make to pursue the freedom and entrepreneurialism associated with being an independent contractor,” said Secretary of Labor Eugene Scalia. Additional information on DOL is available here.

WARN Act regulations require advance notice of layoffs and closing

As parts of the U.S. brace for a second wave of COVID-19 escalation, the U.S. Department of Labor (DOL) provides a convenient FAQ on the Worker Adjustment and Retraining Notification (WARN) Act. Employers with 100 or more full-time employees are required to provide at least 60 calendar days advance written notice of a worksite closing affecting 50 or more employees. The WARN Act makes certain exceptions to the requirements when employers can show that layoffs or worksite closings occurred due to faltering companies, unforeseen business circumstances and natural disasters. COVID-19-related decisions may fall within these guidelines. In such instances, the WARN Act requires employers to provide as much notice to their employees as possible. Detailed requirements are available in DOL’s FAQ. Additional information on DOL is available here .