Here’s the status of DOL’s upcoming regulatory agenda plans

The Office of Information and Regulatory Affairs has the U.S. Department of Labor’s upcoming unified regulatory agenda on the Internet. The agenda demonstrates the Administration’s ongoing commitment to fundamental regulatory reform and a reorientation toward reducing unnecessary regulatory burdens on the American people.

Defining and delimiting the exemptions for executive, administrative, professional, outside sales and computer employees.

The Wage-Hour Division (WHD) intends to issue a Notice of Proposed Rulemaking (NPRM) to determine what the salary level for exemption of executive, administrative and professional employees should be. In developing the NPRM, the WHD will be informed by the comments received in response to the Request for Information (RIN).

Regular rate under the FLSA.

Under the Fair Labor Standards Act (FLSA), employers must pay covered employees at least one and one half times their regular rate of pay for hours worked in excess of 40 hours per workweek. The employee’s regular rate of pay is defined under FLSA Section 7(e). In this NPRM, the WHD will propose to amend 29 CFR part 778, to clarify, update, and define regular rate requirements under section 7(e)(2) of the Act.

Tip regulations under the FLSA.

FLSA Section 3(m), 29 U.S.C. 203(m), provides in part that an employer may take a partial tip credit (tip credit) against its minimum wage payment obligation to a tipped employee based on tips received and retained by the employee. The recently signed Consolidated Appropriations Act (P.L.115-141) amended the text of the FLSA with respect to tips. The WHD NPRM will withdraw its 2017 NPRM and propose to align its regulations with this recent statutory amendment.

Expanding apprenticeship and employment opportunities for 16 and 17-year olds under the FLSA.

The youth employment provisions of the FLSA were enacted to ensure that when youth work, the work is safe and does not jeopardize their health, well-being, or education. The FLSA provides for a minimum age of 18 years in occupations found and declared by the Secretary of Labor to be particularly hazardous or detrimental to the health or well-being of youths 16 and 17 years of age in nonagricultural employment. Hazardous Occupations Orders are the means by which the Secretary declares certain occupations to be particularly hazardous for these youth. The WHD’s nonagricultural regulations provide limited exemptions from the orders for apprentices and student learners who are working under certain conditions. In this NPRM, the WHD will consider whether certain orders as well as the conditions that apply to the employment of all apprentices and student learners in hazardous occupations, should be updated to reflect the current economic and work environments and to allow for safe and meaningful apprenticeship opportunities and student-learner programs.

Employment of workers with disabilities under special certificates.

FLSA Section 14(c), 29 U.S.C. 214(c), provides that the Secretary of Labor may, to the extent necessary to prevent the curtailment of opportunities for employment, issue certificates to permit the payment of subminimum wages to individuals with disabilities whose earning or productive capacities are affected by their disability. The WHD is proposing to revise the regulations implementing Section 14(c) to reflect changes in employment laws affecting workers with disabilities enacted since the WHD’s last update to the regulations.

Apprenticeship programs, labor standards for registration, amendment of regulations.

The Employment and Training Administration (ETA) is revising title 29 CFR part 29, Labor Standards for the Registration of Apprenticeship Programs to establish guidelines for third parties to certify high-quality, industry recognized apprenticeship programs, and other conforming updates and governance modifications as appropriate.

Temporary non-agricultural employment of H-2B aliens in the United States.

The Department of Homeland Security (DHS) and the Department of Labor’s ETA are jointly issuing regulations governing the certification of the employment of nonimmigrant workers in temporary or seasonal non-agricultural employment and the enforcement of the obligations applicable to employers of such nonimmigrant workers. This interim final rule establishes the process by which employers obtain a temporary labor certification from ETA for use in petitioning DHS to employ a nonimmigrant worker in H-2B status. These regulations also will provide for increased worker protections for both U.S. and foreign workers. (, May 2018.)

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