Scalia Approved as Secretary of Labor.
Following approval by the Senate Health, Education, Labor and
Pensions Committee earlier this week, this afternoon Eugene Scalia
was approved by a 53-44 vote of the full Senate.
PRO Act Advances. As expected, the House Education
and Labor Committee on Wednesday approved a substitute amendment to
H.R. 2474, the Protecting the Right to
Organize Act of 2019, on the party line vote of 26 to 21.
Thirty-one Republican amendments were rejected. As noted in prior
newsletters, the bill constitutes a wish list for organized labor
(before which other efforts including the Employee Free Choice Act
shrink in comparison), with amendments ranging from redefining the
employment relationship, to all but prohibiting right-to-work laws,
to permitting secondary boycotts, to codifying the Obama
"persuader" regulation, to providing a private right of
action with punitive and compensatory damages. The final version --
i.e., the "substitute" --added other provisions which
tilted the bill even further. The markup was contentious and the
various Republican amendments offered highlighted serious problems
with the legislation. While House floor action is expected, with
208 Democratic cosponsors but no Republicans, the bill has no
future in the Senate. Nevertheless, it does provide a look at the
possible direction of future labor reform efforts, depending on
what happens in next year's elections.
DOL Increases Salary Threshold for White Collar
Exemptions. Earlier this week, the Department of Labor
announced its final rule increasing to $684/week the salary
threshold for the white-collar exemption, and increasing the
minimum compensation for the highly-compensated employee provision
to $107,432. Both provisions take effect on January 1, 2020. For
more information, see Seyfarth's Wage & Hour Litigation
blog.
OFCCP About to Start Collecting Affirmative Action Plans
Electronically? From time-to-time, the Government
Accountability Office (GAO) reviews the performance of various
government programs. In 2016, GAO issued a report finding that the OFCCP's oversight
was limited by reliance on contractors' voluntary compliance
with affirmative action plan (AAP) requirements. In that report,
GAO recommended that OFCCP develop a mechanism to monitor AAPs on a
regular basis, and suggested that it could electronically collect
AAPs and contractor certification of annual updates. Since that
time, not much has been heard on the issue . . . until last week,
when GAO released a status update indicating that OFCCP was in the
process of obtaining OMB approval for collecting AAPs and planned
to launch an AAP portal for public use. The announcement is
expected on September 30. Any such information request will be
subject to public comment.
House Subcommittee Holds Hearing on Employee
Misclassification. Finally, as noted last week, today, the
Workforce Protections Subcommittee of the House Committee on
Education & Labor held a hearing titled "Misclassification of
Employees: Examining the Costs to Workers, Businesses, and the
Economy." The focus of the hearing was a proposed bill with
the working title of the Payroll Fraud Prevention Act of 2019. In
its current form, that bill would require businesses to provide
notice to any "individual providing labor or services for
remuneration." The notice would include the worker's
classification (i.e., employee or non-employee), a link to a
proposed DOL website, and the address and phone number to the local
Wage & Hour Division office. Failure to provide the notice --
or failure to provide an accurate or timely notice -- would result
in a presumption of employee status, rebuttable only by clear and
convincing evidence. The bill would also increase liquidated
damages for violations of the FLSA accompanying misclassifications,
as well as make civil money penalties (CMP) available for any
violation of the FLSA. Repeated or willful violations -- the
current standard for assessing CMPs -- would be subject to CMPs up
to $5,000. Policy Matters's own Alex Passantino testified at
the hearing
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