In 2010, the Department of Labor’s (DOL) Wage and Hour Division (WHD) announced its plans to update the Fair Labor Standards Act (FLSA) recordkeeping requirements. The announcement was made in the 2010 Spring Regulatory Agenda, but the agency has yet to transform its intentions into law. How will the election affect the probability of these ideas, referred to as "Right to Know Under the Fair Labor Standards Act," coming to fruition?

The proposed rule considered by the DOL would require covered employers to "notify workers of their rights under the FLSA, and to provide information regarding hours worked and wage computation." Employers classifying any employees as exempt would be "required to perform a classification analysis, disclose that analysis to the worker, and retain that analysis to give to WHD enforcement personnel who might request it." The DOL stated its aim is "to foster openness and transparency, to increase awareness among workers, and to encourage greater compliance by employers."

At this time, employers are not required keep written records justifying the exempt status of employees, and creating this type of record for every exempt employee would undoubtedly be time-consuming and expensive for large companies.

The WHD has delayed the action several times over the last two years. The 2010 Spring Regulatory Agenda stated that proposed recordkeeping rules would be published in August 2010. This was later changed to April 2011, and then again to October 2011.

On January 20, 2012, the DOL’s the Unified Regulatory Agenda moved the "Right to Know" rules from the category "Proposed Rules Stage" into the "Long-Term Actions" category. "Long-Term Actions" refers to issues for which no regulatory action is expected to occur within a year’s time. There was no longer a target date assigned for proposing the rules, and the long-term status would indicate that the earliest the new rules would be proposed would be January 20, 2013, after the presidential election.

Delaying the rule process in this case helps to avoid what would be a very controversial election-year issue. If President Obama wins the election, then the "Right to Know" rules will likely reemerge as a major issue for employers. Romney, on the other hand, would likely not be a proponent of requiring companies to go through the time-consuming and expensive process to create these records.

More Resources on FLSA

• Poll Shows How 'Right to Know' FLSA Requirement Could Affect Employers
• FLSA Audit Checklist: Correcting Improper Deductions

Susan E. Prince, J.D., is a Legal Editor for BLR’s human resources and employment law publications. Ms. Prince has over 10 years of experience as an attorney and writer in the field of human resources and has published numerous articles on a variety of human resources and employment topics, including compensation, benefits, workers’ compensation, discrimination, work/life issues, termination, and military leave. Ms. Prince also served as an expert on several audio conferences discussing the 2004 changes to the federal regulations under the Fair Labor Standards Act. Before starting her career in publishing, Ms. Prince practiced law for several years in the insurance industry and served as president of a retail sales business. Ms. Prince received her law degree from Vermont Law School.