Joint employer, overtime rules top fall agency list

On October 17, the Agency Rule List for Fall 2018 was released, with notable developments at the Department of Labor, the EEOC, and the National Labor Relations Board. Although the NLRB’s proposed joint employer rulemaking was announced previously, the DOL’s proposed rules to define “joint employer” under the FLSA will be new. And the long-awaited overtime rule amendments are now not expected until March 2019.

Wage and Hour Division

At the Department of Labor, there are five proposed rulemakings that the Wage and Hour Division is undertaking that are of particular interest.

Overtime rules.

The first is the closely watched so-called “white collar” exemption to the overtime rule. On July 26, 2017, the WHD issued a request for information on defining and delimiting the exemptions for executive, administrative, professional, outside sales, and computer employees. The comment period ended September 25, 2017. The WHD expects to issue a notice of proposed rulemaking in March 2019. The big question here is what salary level at which overtime requirements would kick in.

Determining joint employment

. Another controversial regulatory action is the notice of proposed rulemaking on joint employment under the FLSA that the WHD expects to issue in December 2018. The division will propose to clarify the contours of the joint-employment relationship to assist the regulated community in complying with the FLSA. Here the question is how narrowly the WHD will draw the criteria under which an employer will be found to jointly employ another employer’s workers.

FLSA regular and basic rates

. The WHD also intends to issue a notice of proposed rulemaking in December 2018 on regular and basic rates under the FLSA, which would update Part 778 of the FLSA “to reflect the 21st century workplace,” specifically, changes in compensation practices and relevant laws. The regulatory action would provide guidance for employers offering these more modern forms of compensation and benefits regarding their inclusion in, or exclusion from, the regular rate. The clarification is intended to ensure that employers have the flexibility to provide such compensation and benefits to their employees. The DOL believes the proposed changes will facilitate FLSA compliance and reduce litigation regarding the regular rate. Additionally, the DOL will update Part 548.

Tipped workers

. In October 2018, the WHD intends to issue a new notice of proposed rulemaking on tip regulations under the FLSA. The first proposed rulemaking notice was issued December 5, 2017, with the comment period extended twice. The important question here is the circumstances under which employees’ tips may be pooled and the extent to which tips may be credited to meet minimum wage requirements.

Youth in health care

. Finally, the comment period on the WHD’s September 27, 2018, notice of proposed rulemaking on employment, training, and apprenticeship opportunities for 16- and 17-year-olds in health care occupations under the FLSA will close on November 26, 2018. The DOL is considering whether it should amend Hazardous Occupations Order No. 7 (occupations involved in the operation of power-driven hoisting apparatus) to reflect current economic and work environments and allow for safe and meaningful employment opportunities for youth in healthcare. Among the controversies here are concerns that 16- and 17-year-olds are generally not able to safely operate power-driven hoists.

NLRB

At the National Labor Relations Board, the notice of proposed rulemaking on the standard for determining joint-employer status was issued on September 14, 2018. The comment period on the proposed rulemaking closes on November 13, 2018. The proposed rule is consistent with the standard announced in the Board’s Hy-Brand Industrial Contractors decision from December 2017, a failed effort to overturn the current, broader standard in place under the Obama Board’s Browning-Ferris ruling from 2015.

EEOC

Two proposed rulemakings particularly notable at the EEOC are proposed amendments to the ADA and GINA regulations on the interaction between those statutes and employer-sponsored wellness programs. The EEOC expects to issue notices of proposed rulemaking under the ADA and under GINA in June 2019. In August 2017, the U.S. District Court for the District of Columbia ordered the EEOC to reconsider its earlier regulations. The proposed revisions will be based on the court’s order, as well as statutory requirements.

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