As we reported earlier, Executive Order 13891 ordered all Executive Branch agencies to review agency guidance documents, rescind or modify them as necessary, and make them available to the public in a single, searchable online database. The EEOC and the Department of Defense launched theirs before or by the February 28, 2020 deadline. Now the Department of Labor (DOL), a little late to the party, has launched theirs.
The new website, https://www.dol.gov/guidance, is live, and allows users to filter document search results by 29 different agencies. Notably, many have not posted any guidance documents at all to the new DOL database, though that could change in the coming days.
|Agency||Total Guidance Documents|
|Administrative Review Board||0|
|Benefits Review Board||0|
|Bureau of Labor Statistics||0|
|Centers for Faith and Opportunity Initiatives||0|
|Department of Labor||0|
|Employee Benefits Security Administration||203|
|Employees’ Compensation Appeals Board||0|
|Employment Standards Administration||0|
|Employment and Training Administration||151|
|Mine Safety & Health Administration||221|
|Occupational Safety & Health Administration||6320|
|Office of Administrative Law Judges||0|
|Office of Congressional & Intergovernmental Affairs||0|
|Office of Disability Employment Policy||131|
|Office of Federal Contract Compliance Programs||76|
|Office of Inspector General||0|
|Office of Labor-Management Standards||50|
|Office of Public Affairs||0|
|Office of Workers’ Compensation Programs||45|
|Office of the Assistant Secretary for Administration & Management||157|
|Office of the Assistant Secretary for Policy||0|
|Office of the Chief Financial officer||0|
|Office of the Secretary||3|
|Office of the Solicitor||1|
|Ombudsman for the Energy Employees Occupational Illness Compensation Program||0|
|Veterans’ Employment & Training Service||7|
|Wage and Hour Division||152|
|Women’s Bureau 100||0|
Note that the Women’s Bureau, which is celebrating its centennial this year, appears to be listed twice. Note also that “Apprenticeship” appears to be a reference to the Task Force on Apprenticeship Expansion and/or broader initiatives within DOL specific to promoting apprenticeship opportunities, and not a formal, stand-alone agency.
Interestingly, the Occupational Safety & Health Administration (OSHA) has posted over five times as many guidance documents as all other DOL agencies combined, accounting for just over 84% of the documents available as of this writing. By contrast, the Office of Federal Contract Compliance Programs (OFCCP) has posted just 76 guidance documents, accounting for just 1%. Excluding OSHA and agencies that have not posted any documents, the average number appears to be about 92.
The OFCCP has taken strides over the past several years to “clean-up” that agency’s various guidance documents to align them with current case law and for internal consistency. The OFCCP has also taken great strides to make those guidance documents more accessible on the agency’s website.
The Executive Order does not appear to require agencies to make their guidance documents available exclusively through these new guidance websites and “portals,” but it would be inconsistent with the Order to post any guidance documents elsewhere that are not also included in these central repositories.
The new DOL site dutifully notes that the documents do not have the force or effect of law and are generally not binding on the public. They’re not binding on the agency, either, but to the extent that the public comes to rely on the guidance provided, agencies arguably have some duty to provide notice of guidance changes. Oddly, there does not appear to be any mechanism in the Executive Order for notifying the public of updates.
The public can, however, request that the agency review a particular document for potential updating or rescission. For DOL guidance documents, including OFCCP documents, you can email DOL at TalkAboutGuidance@dol.gov, or send an old-fashioned paper letter through the postal service to:
U.S. Department of Labor
Office of the Executive Secretariat
200 Constitution Ave NW
Washington, DC 20210