On August 28, 2020, the U.S. Department of Labor (“DOL”) published in the Federal Register a final rule that substantially revises its practices with respect to guidance documents.  The “Promoting Regulatory Openness through Good Guidance Rule,” referred to as the “PRO Good Guidance Rule,” implements President Trump’s Executive Order 13891, which directed federal agencies to curtail and streamline guidance practices.  The DOL explained that in issuing the PRO Good Guidance Rule, it sought “to create fairer procedures for the issuance and use of regulatory guidance at the Department of Labor,” and in recognition of the fact that “the public often treats guidance from agencies as binding, even if it technically is not.”

Of chief significance, under the PRO Good Guidance Rule, all DOL guidance documents going forward will be made publicly available in a searchable database on the DOL’s website.  Anything not posted in this database will no longer be considered guidance and cannot be relied upon as such.  The rule clarifies that many types of documents that parties may have previously utilized as guidance—including DOL legal briefs and court filings, agency adjudications, and opinion letters issued to a particular person in response to a specific inquiry—do not constitute guidance and cannot be relied upon as such, unless that document has been posted to the DOL’s guidance database.

The PRO Good Guidance Rule also requires that any future guidance considered “significant” (which would include guidance with an economic impact greater than $100 million, that would create a serious inconsistency with action taken by another federal agency, or that would have certain other noteworthy impacts) will have to go through a formal process requiring notice-and-comment review before being implemented, similar to what is already required for agency rulemaking.  Finally, under the PRO Good Guidance Rule, the public will now be afforded the right to petition the DOL to amend or withdraw guidance with which it disagrees.

The DOL also announced that in creating its guidance database, it “undertook a comprehensive review of its own guidance” and had “rescind[ed] nearly 3,200 documents.”

The PRO Good Guidance Rule takes effect on September 27, 2020, after which employers and practitioners should confirm that any DOL guidance on which they intend to rely are posted in the public database.

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Photo of Allan Bloom Allan Bloom

Allan S. Bloom is a nationally recognized trial lawyer and advisor who represents management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended a number of the world’s leading companies against claims for unpaid wages…

Allan S. Bloom is a nationally recognized trial lawyer and advisor who represents management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended a number of the world’s leading companies against claims for unpaid wages, employment discrimination, breach of contract and wrongful discharge, both at the trial and appellate court levels as well as in arbitration. He has secured complete defense verdicts for clients in front of juries, as well as injunctions to protect clients’ confidential information and assets.

As the leader of Proskauer’s Wage and Hour Practice Group, Allan has been a strategic partner to a number of Fortune 500 companies to help them avoid, minimize and manage exposure to wage and hour-related risk. Allan’s views on wage and hour issues have been featured in The New York TimesReutersBloomberg and Fortune, among other leading publications. His class-action defense work for clients has saved hundreds of millions of dollars in potential damages.

Allan is regularly called on to advise boards of directors and senior leadership on highly sensitive matters such as executive transitions, internal investigations and strategic workforce planning. He also has particular expertise in the financial services industry, where he has litigated and arbitrated cases, including at FINRA and its predecessors, for more than 20 years.
A prolific author and speaker, Allan was the Editor of the New York State Bar Association’s Labor and Employment Law Journal from 2012 to 2017. He has served as an author, editor and contributor to a number of leading treatises in the field of employment law, including ADR in Employment Law (ABA/Bloomberg BNA, Senior Editor), Employment Discrimination Law (ABA/Bloomberg BNA, Final Proof Editor), Cutting Edge Advances in Resolving Workplace Disputes (Cornell University/CPR, Editor), The Employment Law Review (Law Business Research, U.S. Chapter Author), and The Complete Compliance and Ethics Manual (SCCE, Chapter Author).

Allan is a member of the NYSBA’s House of Delegates, sits on the Executive Committee of the NYSBA’s Labor and Employment Law Section, and is a Fellow of the College of Labor and Employment Lawyers. He has been recognized as a leading practitioner by Chambers since 2011.

Photo of Jordan Glassberg Jordan Glassberg

Jordan Glassberg is an associate in the Labor & Employment Law Department. Jordan represents employers in a broad array of matters before federal and state courts, FINRA and other arbitration panels, and administrative agencies, including the Equal Employment Opportunity Commission.  Jordan’s practice includes…

Jordan Glassberg is an associate in the Labor & Employment Law Department. Jordan represents employers in a broad array of matters before federal and state courts, FINRA and other arbitration panels, and administrative agencies, including the Equal Employment Opportunity Commission.  Jordan’s practice includes a wide range of labor and employment matters, including employment discrimination, harassment, wage and hour claims, and wrongful termination.  Jordan has assisted in single-plaintiff lawsuits and class and collective actions.  Jordan also provides significant assistance on counseling matters on a wide array of issues.  Jordan has represented clients across many different industries, including financial services, sports, news and media, entertainment, real estate, and healthcare.  Jordan also maintains an active pro bono practice, focusing on assisting asylum seekers and disabled veterans.

Prior to joining Proskauer, Jordan clerked for the Honorable William H. Pauley III in the Southern District of New York.

Before clerking, Jordan graduated from Duke Law School, where he was managing editor of the Duke Journal of Constitutional Law & Public Policy and a member of Duke’s Moot Court and Mock Trial Boards. While at Duke, Jordan received the Labor and Employment Law Award for the Class of 2017, won the Hardt Cup 1L Moot Court Tournament and interned for the United States Attorney’s Office for the District of New Jersey.