Nathan Oleson Quoted in SHRM Article on DOL’s Lifting of Subregulatory Guidance Limits

SHRM has quoted Akin Gump labor and employment partner Nathan Oleson in the article “DOL Lifts Limits on Subregulatory Guidance,” which reports on a decision by the Biden administration to lift certain limits that the Trump administration had placed on subregulatory guidance. That is, guidance that has not gone through the notice-and-comment period.

“Subregulatory guidance,” Oleson said, “is quick and relatively easy, while formal rulemaking takes time, requires the [Department of Labor] to follow specific procedures and requires the agency to defend its ultimate policy choices.” The issuance of informal, subregulatory guidance, he added, has had the same practical effect as formal rulemaking because it puts substantial pressure on employers from a compliance perspective.

Under the Obama administration, Oleson noted, subregulatory guidance “was increasingly offering detailed rules supported by extensive legal discussion, increasing the possibility that courts would follow it.” He said the Trump administration was also concerned about how the Labor Department was using subregulatory guidance in individual enforcement actions, with investigators in some cases, “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.”

Looking ahead, Oleson said the rescission of the Trump administration’s rule will likely have the biggest impact on enforcement. With the Biden administration lifting the rule, he said, employers that lack “a detailed understanding of the law or do not have the resources to engage in protracted enforcement litigation with the DOL may be more likely to give in when pressured by enforcement personnel to follow subregulatory guidance.”