New Wage And Hour Compliance Program At DOL

On April 3, 2018, the Department of Labor's (DOL) Wage and Hour Division (WHD) officially launched its Payroll Audit Independent Determination (PAID) program. The six-month pilot initiative encourages employers to conduct self-audits of their payroll practices and voluntarily report underpayments to the WHD. For more information, see page 5 of this issue.

New DOL Opinion Letters

Roughly 10 months after the DOL announced that it would again be issuing opinion letters, on April 12, 2018, the WHD issued three new opinion letters. The letters deal with compensability of travel time and rest breaks, as well as the treatment of lump-sum payments under the Consumer Credit Protection Act (see page 5 of this issue). Along with the new PAID program, the issuance of opinion letters is an example of the current administration's cooperative approach to Fair Labor Standards Act compliance.

Overtime News

The spring regulatory agenda was issued on May 9, 2018, providing stakeholders a glimpse of the administration's current regulatory priorities. On the wage and hour front, the pending proposal on changes to the overtime regulations is now expected to be issued in January 2019. In the meantime, the WHD has indicated that in September of this year it will propose amendments or clarifications to the definition of "regular rate of pay" for calculating overtime pay.

EEOC General Counsel nominee

On April 10, 2018, the Senate Health, Education, Labor and Pensions (HELP) Committee held a confirmation hearing for Sharon Fast Gustafson—the administration's nominee for general counsel of the Equal Employment Opportunity Commission (EEOC). The nomination is long overdue, as the general counsel position has been vacant since December 2016. The EEOC is currently at a 2 to 1 democratic majority, as Commissioner nominees Janet Dhillon and Daniel Gade are still awaiting Senate confirmation.

NLRB Fully Staffed

On April 11, 2018, management attorney John Ring was confirmed by the U.S. Senate to be a member of the National Labor Relations Board (NLRB). Ring was quickly elevated to chairman of the NLRB, replacing Marvin Kaplan. Ring's confirmation means that the Board is now fully staffed, with three Republicans and two Democrats.

"Ambush" Elections Update

April 18, 2018 was the deadline for stakeholders to submit comments to the NLRB's Request for Information (RFI) regarding its 2014 changes to its election procedures. This is the first step in what could be a lengthy process. After the Board reviews the comments submitted in response to the RFI, if it chooses to make changes to the 2014 regulations, it will first issue a notice of proposed rulemaking followed by another comment period.

Joint Employer Rulemaking?

The NLRB's recent return to its "indirect" control standard for determining joint employer status has done little to resolve the uncertainty surrounding the issue. Perhaps in an effort to resolve the matter once and for all, the NLRB has announced that it "is considering engaging in rulemaking to establish the standard for determining joint-employer status under the National Labor Relations Act." The Board has not indicated when it might issue a proposal.

Immigration Regulations On The Horizon?

In the aforementioned regulatory agenda, the United States Citizenship and Immigration Services (USCIS) forecasted its continued plans to scrutinize high-skilled visa categories. For employers that complement their workforces with H-1B visa holders, USCIS has indicated that in January 2019 it will propose amendments to the definitions of "specialty occupation," "employment," and "employer-employee relationship." Similarly, USCIS states that in June of this year, it will propose to "remove from its regulations certain H-4 spouses of H-1B nonimmig ants as a class of aliens eligible for employment authorization."

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