Department of Labor Issues Rule Providing Access to Agency Guidance

On August 21^st, 2020, the U.S. Department of Labor (DOL) announced the publication of its Promoting Regulatory Openness through Good Guidance Rule (PRO Good Guidance Rule). The rule, which implements Executive Order 13891 (Promoting the Rule of Law through Improved Agency Guidance Documents) seeks to create fairer procedures for the issuance and use of regulatory guidance at the DOL. The release of this guidance comes two months after the DOL published five new wage & hour opinion letters that address compliance issues related to the Fair Labor Standards Act (FLSA).

Contents of the Pro Good Guidance Rule

The PRO Good Guidance Rule, in accordance with the order, requires that the DOL use guidance appropriately, transparently, and in a manner that is accessible to the public. The rule accomplishes this in four key ways:

1. By providing that, for significant guidance involving impacts greater than $100 million, the DOL will provide for notice-and-comment review of the guidance;
2. By requiring all DOL guidance to be made available to the public in a searchable database;
3. By allowing the public to petition the DOL on issues related to its guidance; and
4. By limiting the DOL’s use of guidance to avoid potentially unfair conduct.

“Following the President’s direction, the U.S. Department of Labor undertook a comprehensive, nine-month assessment to ensure that American workers and businesses have fair notice of their rights and obligations under the law,” said U.S. Deputy Secretary of Labor Patrick Pizzella. “The Department is proud to unveil the results of its months of hard work – recognizing that these are just the first steps toward a more transparent government.” In addition to these substantive requirements, pursuant to the Executive Order and the PRO Good Guidance Rule, the DOL performed a comprehensive review of its guidance library, rescinding nearly 3,200 documents. The remaining documents are all available in the searchable database mentioned earlier.

Employer Takeaway

Guidance documents can be invaluable for employers, managers, and Human Resources professionals when used properly. They can provide clarity about existing rights and obligations and help stakeholders comply with laws and regulations. By allowing the public to search the extensive database for specific topic guidance, and issue new guidance and opinion letters for consumption, the DOL continues their mission of fostering, promoting, and developing fair workplace practices between employers and employees.