Smoother sailing for employment and workplace practices

On May 23, the Trump administration released its spring 2019 Unified Agenda of Federal Regulatory and Deregulatory Actions, in which employment and workplace practices were the focus of a number of proposed regulations.

In many instances it amounts to a “righting of the ship” from existing federal employment regulations and decisions that were burdensome and difficult to navigate.

The U.S. Chamber of Commerce’s Labor Relations Committee published some of the highlights:

Department of Labor (DOL) – Wage and Hour Administration

  • Proposed Rule: Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees 

In what essentially amounts to overtime regulation, the Department of Labor has issued a Notice of Proposed Rulemaking (NPRM) to determine the appropriate salary level for exemption of executive, administrative and professional employees under the Fair Labor Standards Act (FLSA). The comment period closed May 21.

  • Proposed Rule: Joint Employer Status Under the FLSA

In this NPRM, the DOL proposes clarifications to the contours of the joint employment relationship to assist employers in complying with the FLSA. The comment period closed June 25, but there is no projection for the release of a final rule.

  • Long-Term Action List: Fluctuating Work weeks Under the FLSA

Federal regulations provide an alternative method for calculating overtime pay under the FLSA for employees whose work hours fluctuate from week to week. Currently, this method is not available to employers who compensate their employees with bonuses or other incentive-based pay. The DOL is planning to revise these regulations to grant employers greater flexibility to provide additional forms of compensation to employees whose hours vary from week to week. They have not yet announced a specific timeline for a proposed regulation.

The DOL on Occupational Safety and Health Administration (OSHA)

  • Long-Term Action List: Drug Testing Program and Safety Incentives Rule

OSHA recently clarified, through a memorandum to the field, the agency’s position that 29 CFR 1904.35(b)(1)(iv) does not prohibit post-incident drug testing or safety incentive programs. A proposed regulation is expected in September 2020.

National Labor Relations Board (NLRB)

  • Proposed Rule: Employee Access to Workplace Rule 

The NLRB plans to engage in rulemaking to establish standards under the National Labor Relations Act (NLRA) for union or off-duty employee access to an employer’s private property. The NPRM is projected for September 2019.

  • Long-Term Action List: Joint Employer Rulemaking

The NLRB is engaging in rulemaking to establish the standard for determining joint-employer status under the NLRA. It is expected that this regulation will return the law to the traditional direct control test stemming from the 2014 decision establishing a new, indirect control test that was ambiguous and confusing. There is currently no public schedule for a final rule.

Equal Employment Opportunity Commission

  • Proposed Wellness Regulations Under the Genetic Information Nondiscrimination Act of 2008 (GINA) and the Americans with Disabilities Act (ADA)

This rule amends the regulations to address employer wellness programs under the GINA and their interaction with the ADA. A proposed regulation is planned to be released in December 2019.

About the author

Clyde Jacob III

Clyde Jacob III is senior counsel in Fisher Phillips’ New Orleans office. His experience spans 40 years, and he has represented employers throughout the U.S. and Puerto Rico. He can be reached at chjacob@fisherphillips.com.

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