Agencies Release Regulatory Roadmap for 2018 and Beyond
The contemporary Unified Agenda of Regulatory and Deregulatory Actions (“spring time table”) continues this management’s trend of adding fewer new rules and reexamining older ones. These semiannual agendas provide perception into federal agency priorities for the approaching year. While the list of upcoming guidelines is incredibly pared down in comparison to those issued at some point of the earlier management, there are nevertheless a few surprises in the spring agenda. Notably, the Department of Labor (DOL) is pushing the issuance of a new proposed rule governing extra time into 2019, and the National Labor Relations Board (NLRB) is thinking about drafting a rule on joint employment. Some highlights of the spring agenda are mentioned underneath.
Some surprising information from the DOL’s agenda is the postpone of a revised overtime rule proposal. The DOL’s remaining try and trouble a new rule on extra time for “white collar” employees became met with great opposition. The rule, which could have improved the minimum revenue level for exempt employees under the Fair Labor Standards Act (FLSA) from $455 according to week ($23,660 yearly) to $913 in step with week ($47,476 yearly), become in the long run invalidated by way of a Texas federal courtroom. While the DOL first of all appealed the federal court’s choice, it requested the Fifth Circuit to live the litigation at the same time as it undertook new rulemaking.
To that quit, the DOL’s Wage and Hour Division (WHD) issued a Request for Information on July 26, 2017. The WHD sought public enter regarding the minimal salary level required for exempt reputation so the WHD may want to put together a new set of proposed overtime exemption rules. The comment period for that Request for Information led to September 2017. It changed into anticipated that the WHD might quickly problem a brand new proposed rule taking this statistics into account, but the launch of the spring agenda indicates that a notice of proposed rulemaking will not probable be issued until January of 2019.
The WHD has announced that it intends to issue a proposed rule on tip pooling via August 2018. Tip swimming pools were a contentious issue for the reason that DOL issued a proposed rule in December 2017. The DOL’s preceding idea might have allowed employers to require tipped employees paid as a minimum the total minimal wage to percentage their suggestions with personnel who aren’t usually tipped. In reaction, Congress included in its omnibus finances invoice a provision that confounded the proposed tip pooling rule. The applicable provision of the price range invoice states:
An company might not preserve suggestions acquired through its employees for any functions, such as permitting managers or supervisors to maintain any part of employees’ recommendations, regardless of whether or not the business enterprise takes a tip credit score.
The DOL intends to use this new proposed rule to withdraw its December 2017 rule, and to align its regulations with the supply in Congress’s budget bill.
Clarifications of “Regular Rate” underneath the Fair Labor Standards Act
The WHD additionally intends to issue a rule proposal around September 2018 updating the everyday rate necessities under the FLSA. The ordinary fee underneath the FLSA is used to pick out what payments qualify as the reimbursement to the employee for functions of determining beyond regular time pay. Specifically, the WHD is looking for to make clear phase 207(e)(2) of the FLSA, which excludes payments made for periods where no paintings is finished, such as excursion or excursion pay, reimbursements to employees for travel fees, and any comparable payments made to an employee that are not made as repayment for the employee’s paintings. It is doubtful right now what particularly the WHD will clarify about phase 207(e)(2).
Apprenticeship Program Certification Guidelines
In maintaining with the President Trump’s Executive Order 13801: Expanding Apprentices in America, the Employment and Training Administration (ETA) has stated its purpose to revise the Code of Federal Regulations as it pertains to the registration of apprenticeship packages. The proposed rule will set up recommendations on a way to certify first-rate, industry diagnosed apprenticeship applications, amongst different updates and adjustments. The Trump administration’s June 15 government order changed into centered on selling apprenticeships and body of workers improvement programs via lowering the regulatory burden on those packages. This upcoming rule is another step in promoting the management’s agenda on apprenticeship programs.
Simplifying the Tracking of Workplace Injuries and Illnesses
The Occupational Safety and Health Administration (OSHA) plans to reexamine the Improve Tracking of Workplace Injuries and Illness very last rule issued in May of 2016. Under the very last rule, employers with 250 or more employees had been required to electronically post to OSHA facts from the Log of Work-Related Injuries and Illness shape, and the Injury and Illness Incident Report shape. The proposed rule might lower the burden on employers by using best requiring the submission of the Summary of Work-Related Injuries and Illnesses form. OSHA is also seeking touch upon including the Employer Identification Number, so that OSHA and the Bureau of Labor Statistics can cross reference their reports, probably reducing the burden on employers to file accidents and ailments to each companies.
The contentious “persuader” rule that might have improved reporting necessities for employers that use hard work-control experts for sure purposes is near being officially rescinded. The very last rule that would achieve this stop has been submitted to the Office of Management and Budget (OMB) for overview, and is expected to be issued this month.
Association Health Plans
A final rule governing the formation of Association Health Plans (AHPs), which might allow small companies with a commonality of hobby to sign up for collectively in an affiliation to sponsor massive institution fitness plans, is expected to be issued this summer. The DOL had asked for enter on its proposed rule with appreciate to how extensively it should outline commonality of hobby for functions of an AHP and the authority of the DOL to preempt nation multi-corporation welfare arrangement policies for AHPs, amongst other issues. The rule is presently at OMB, the closing step before ebook in the Federal Register.
National Labor Relations Board
With the release of the spring agenda, it appears the NLRB intends to make clear its role on joint employment. For three decades previous to 2015, the NLRB interpreted joint employment under the National Labor Relations Act (NLRA) as requiring that the alleged joint employers “shared or codetermined” the terms and conditions of employment, and argued that the “important element in [the joint employment] evaluation is whether a putative joint agency’s control over employment topics is direct and instantaneous.” TLI, Inc. 271 NLRB 798, 799 (1984): In Re Airborne Freight Co. 338 NLRB 597 (2002). Over just the ultimate 3 years, the NLRB has changed its legit role on the standard for joint employment underneath the NLRA three instances.
In August of 2015, the NLRB determined that “manipulate exercised not directly—consisting of thru an intermediary—may additionally establish joint-employer fame.” Browning-Ferris Industries of California, 362 NLRB No. 186 (Aug. 27, 2015). This significantly multiplied the class of joint employers to encompass employers that had no direct manage over the employee. Then, on December 14, 2017, the NLRB revised its selection in Hy-Brand Indus. Contractors, Ltd, 365 NLRB No. 156 (Dec. 14, 2017), returning to the extra restrictive general of joint employment that the board had operated under prior to 2015. Three months later, on February 26, 2018, the NLRB vacated its 2017 choice, reaffirming the large definition of joint company installed in 2015. On April 6, 2018, the D.C. Circuit agreed to review the decision in Browning-Ferris.
Meanwhile, the NLRB shows in the spring time table that it is “thinking about accomplishing rulemaking to establish the standard for figuring out joint-company status.” The NLRB has not set any date to assume its notice of proposed rulemaking on the joint-enterprise difficulty, as an alternative placing the proposed rule on the “Long-Term Actions” schedule. However, in a press release, NLRB Chairman John Ring stated he become “devoted to running with my colleagues to problem a proposed rule as quickly as feasible,” intimating the proposal would be transferring forward inside the coming months.
Request for Information at the Representation Election Rule
In the short term, the NLRB intends to difficulty a Request for Information (RFI) concerning its representation election rules in June 2018. On December 15, 2014, the NLRB issued a final rule that accelerated the election process for hard work unions, doubtlessly allowing an election to be held in as few as 13 days from the filing of the representation petition. The NLRB’s new RFI has a particular focus at the December 15, 2014 very last rule, and is thinking about revising the illustration election regulations.
The equal day the regulatory time table turned into launched, Sen. Bernie Sanders (I-VT) and Rep. Mark Pocan (D-WI) introduce partner legislation within the House and Senate that might make it simpler for employees to form unions. The Workplace Democracy Act, an updated model of the Employee Free Choice Act or “card test” invoice introduced during the Obama administration, could allow the NLRB to certify a union as the distinct bargaining representative if a majority of eligible workers provide consent via a signup procedure. The invoice could also, amongst other provisions, allow for secondary boycotts and picketing, extend and replace the persuader rule, follow the “direct or indirect control” preferred to joint employment, enact “first agreement” provisions wherein employers could be required to negotiate a first contract inside 10 days of receiving a union request, and apply an “ABC” take a look at underneath the NLRA to determine whether or not a employee is an unbiased contractor. Specifically, below this take a look at, an man or woman would be presumed an worker except: “(A) the individual is unfastened from manage and path in reference to the performance of the service, each beneath the contract for the performance of service and actually; (B) the service is finished outdoor the usual course of the commercial enterprise of the business enterprise; and (C) the person is usually engaged in an independently mounted change, occupation, career, or enterprise of the identical nature as that concerned within the carrier completed.”
This bill is not expected to strengthen, despite the fact that its provisions might be used as talking factors within the mid-time period elections.
The Department of Homeland Security
Additional Requirements on H-1B Nonimmigrant Visas
The Department of Homeland Security (DHS) intends to difficulty a set of proposed rules to revise the H-1B visa application. The first of DHS’s proposed guidelines is projected to be issued around July 2018. This first proposed rule might establish an electronic registration software for petitions problem to numerical boundaries for the H-1B nonimmigrant classification. This rule might permit the U.S. Citizenship and Immigration Services (USCIS) to extra efficiently control the consumption of candidates and the lottery system for H-1B petitions. The 2nd proposed rule, slated for a January 2019 e-book date, would revise the H-1B visa application. The proposed rule will reexamine the definition of strong point career, employment, and the corporation-employee dating below this system. DHS will also advocate other necessities to make sure H-1B visa holders are paid the proper wage.
For other immigration-related rulemaking, see DHS’s agenda for 2018.
Equal Employment Opportunity Commission
Revising Wellness Program Regulations
The Equal Employment Opportunity Commission intends to problem a hard and fast of proposed policies around January 2019 to address the EEOC’s law of wellness applications. This set of rules comes as no wonder, because the EEOC changed into ordered through the U.S. District Court for the District of Columbia to rethink its policies governing incentives for employer-backed wellness applications. The court docket found the EEOC did no longer properly explain, as it’s far required to do under the Administrative Procedures Act, why it set the most incentive or penalty below wellness packages at 30% of the fee of self-handiest insurance.
Many gadgets on the spring regulatory agenda cope with rescissions of existing regulations, that is steady with the president’s directive. But in the area of exertions and employment regulation, while a few matters are, in truth, being rescinded, there stays a strong schedule of adjustments ahead. We will continue to keep you informed of those trends.