NFIB Report warns Congress that regulatory agencies are imposing rules outside of the formal process that is supposed to ensure transparency and accountability
The NFIB Small Business Legal Center prepared a white paper explaining the problem of underground regulations and identifying numerous examples of executive actions that we think should have undergone some form of notice-and-comment—as a matter of good governance.
Federal agencies are subverting the system of checks and balances by imposing new rules with informal guidance letters, interpretative statements, court filings and other forms of “”underground regulation”” that occur deep beneath the public’s view.
Table of Contents
A Forward on Checks and Balances
Introduction
Bringing Underground Regulations to the Light of Day
Guidance, Field Rulings & Informal Letters;
- IRS Prohibits Stand-Alone Reimbursement Accounts under Affordable Care Act
- DOL Changes its Interpretation of Qualifying Exempt Employees under the FLSA
- DOL’s Underground Rules on Independent Contractors
- EEOC’s Underground Rules on Pregnancy Discrimination
- EEOC’s Underground Rules on Credit Checks
- EEOC’s Underground Rules on Criminal Background Checks
- OSHA’s Underground “Union Walk-Around Rule”
Regulation by Amicus
- DOL Changes Longstanding Rules for FLSA’s Outside Sales Exemption
- FCC’s Expands its Authority and Avoids Judicial Review Through Amicus Filings
Setting Policy Through Enforcement
- FTC Pronounces Underground Rules on Data Security
- DOL Seeks to Alter OSHA Test for “Employer”
- NLRB Seeks to Change Rules on Joint-Employers for Franchisors
- Department of Justice Leads Operation Choke Point
Executive Orders
- Executive Order No. 13496: Requirement that government contractors display “Notice Poster”
Conclusion
