Wage & Hour Division Hits Record
Recoveries. The US Department of Labor announced that WHD’s FY2019 (which ended
September 30) performance included a record $322 million in back
wages recovered. WHD also held more than 3700 compliance
events--another record. The Department prepared an infographic providing more details, including
links to prior years’ metrics and statute-specific (e.g.,
FMLA, Davis-Bacon Act) performance.
... And Updates Its App. Several years ago, WHD
created an app that allowed employees to record time spent working.
The app contained few safeguards on data quality, allowing, for
example, an employee to record 42 working hours in a single day.
WHD has announced an update to the app, which now appears to limit an employee to
24 hours in a day. The app also contains an employer interface,
allowing employers to record hours worked and rates of pay, while
the app calculates the regular and overtime pay for an
employee.
Bill to Limit Adjudicatory Power of NLRB
Introduced. This week, Sen. Mike Lee (R-UT) introduced the
Protecting American Jobs Act (S. 2709). The bill would eliminate the ability
of the General Counsel to issue complaints, empower the Board to
investigate—but not rule upon—allegations of unfair
labor practices, and create a private right of action for unfair
labor practices. The bill is cosponsored by Sens. Cotton (R-AR),
Paul (R-KY), Blackburn (R-TN), Cruz (R-TX), and Rubio
(R-FL).
Fluctuating Workweek Proposal Expected Soon. The
fluctuating workweek is an alternative method of determining
overtime pay, often resulting in lower overtime costs in exchange
for a guaranteed salary for non-exempt employees. Late last week,
the Office of Management and Budget’s Office of Information
and Regulatory Affairs completed its review of the Department of
Labor’s proposed rule on the use of fluctuating workweeks.
Specifics are not yet available, but it is anticipated that the
Department will address language in a 2011 rulemaking that has been
read to limit the use of fluctuating workweek in the cases of
employees who receive bonuses or incentive-based pay. We expect the
proposal to be published in the Federal Register shortly.
The EEO-1 Component 2 Saga Continues. Like Freddy
Krueger in Nightmare on Elm Street, the EEO-1 Component 2 saga
refuses to die. Several significant activities are going on
simultaneously. In no particular order, the EEOC announced that it
believed that it had collected the requisite percentage of
Component 2 forms and that it would close the portal created to
receive the filings. The National Women’s Law Center went
back to the DC District Court to argue that the received filings
did not reach the court established level and the Component 2, 2017
and 2018 filing should continue. Judge Chutkan agreed with the
plaintiffs and ordered that the portal be kept open at least until
January 31, 2020. The EEOC was ordered to continue to file its
status reports and the parties are to file a joint status report on
February 7. The EEOC asserts that keeping the portal open will cost
$150,000 per week after spending $3 million to establish the
portal. At the same time, the EEOC has started the regulatory process to renew the
OMB approval for the original EEO-1 Component 1. This is the
normal process, but in that preliminary filing, the EEOC announced
that it would not continue Component 2 beyond the 2018 filing
insofar as the excessive burden was not justified by the complete
lack of benefit or utility the data would provide. It could be
expected that this will generate a new round of contention and
possibly litigation. The employer representatives who have
participated in the existing Component 2 litigation will file
comments addressing the renewal of Component 1 and supporting the
decision to stop the Component 2 collection. Seyfarth will be
drafting comments for consideration by the employer associations.
We expect to be reporting on the Component 2 saga in the future as
it clearly will continue in the judicial and administrative forums
for months to come.
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