Rules & Regulations

Dear Mr. Thompson:

Thank you for the opportunity to submit comments to the Board of Directors of the Office of Compliance (“the Board”) concerning proposed substantive regulations for certain rights and protections provided by the Fair Labor Standards Act of 1938 (FLSA), as proposed in the recent Notice of Proposed Rulemaking (“NPR”). The Office of House Employment Counsel offers the following comments and observations with respect to the NPR.

Comments on Proposed Requlations

On September 29, 2004, the Board issued an NPR, 150 Cong. Rec. H7850-07 (daily ed. Sept. 29, 2004), seeking comment on its proposed substantive regulations (“Prop. Reg.’’) concerning the FLSA, 29 U.S.C. § 201 et seq. Relevant sections of the FLSA are incorporated in the Congressional Accountability Act (“CAA”), 2 U.S.C. §§ 1301-1438. More specifically, the CAA incorporates the rights and protections provided in sections 6(a)(1), 6(d), 7, and 12(c) of the FLSA, 29 U.S.C. §§ 206(a)(1), 206(d), 207, and 212(c).

A. General Comments

1. Incorporation of “employing office” definition. Section 541.1 of the Proposed Regulations defines “[e]mployer, company, business or enterprise” as an “employing office” as defined in section 101(9) of the CAA, 2 U.S.C. § 1301(9). See Prop. Reg. 541.1. This incorporation, rather than substitution of the term “employing office” in the appropriate places in the August 23, 2004 Department of Labor (“DOL”) regulations, is confusing and inconsistent with the Board’s past practice regarding incorporation of the DOL’s FLSA regulations. See, e.g., OOC Reg. § H541,5b. Because the readability of the Proposed Regulations would be greatly enhanced by eliminating references to irrelevant or inapplicable terms such as “employer,” “company,” “business,” and “enterprise,” good cause exists to depart from the DOL regulations. See 2 U.S.C. § 1313(c)(2). We therefore recommend that the term “employing office” be substituted where appropriate.
2. Statutory authority for proposed regulations. The Board identifies 29 U.S.C. § 213, 2 U.S.C. § 203, and 2 U.S.C. § 304 as the statutory authority for the Proposed Regulations. The correct statutory cites for sections 203 and 304 of the CAA are 2 U.S.C. §§1313 and 1384. Accordingly, the cites to 2 U.S.C. §§ 203 and 304 should be replaced by the correct statutory citations.