Beltway Buzz, March 8, 2019
It was a busy week in Washington, D.C., marked by the resuscitation of two major employment policy debates from 2016. Here is your Beltway Buzz.
OT Arrives. On March 7, 2019, the Department of Labor (DOL) issued its long-awaited proposal to make changes to its overtime regulations. Alfred B. Robinson, Jr. and Hera S. Arsen have the details on the proposal, which raises the salary level threshold to $35,308 annually. The proposal is expected to be published formally in the Federal Register sometime next week, which means that comments will likely be due sometime in early to mid-May.
EEO-No! On March 4, 2019, Judge Tanya Chutkan of the U.S. District Court for the District of Columbia vacated a 2017 memorandum issued by Office of Information and Regulatory Affairs (OIRA) Administrator Neomi Rao that stayed the Equal Employment Opportunity Commission’s (EEOC) 2016 changes to the EEO-1 form. Accordingly, the 2016 changes to the EEO-1 form are now in effect. As a reminder, these changes require every employer with 100 or more employees (or a federal contractor with at least 50 employees) to submit employees’ W-2 data and hours worked (even for exempt employees) for each establishment. At the time, the U.S. Chamber of Commerce estimated that these changes would force employers to spend $400 million annually to remit aggregate compensation data even though the EEOC admitted that it “does not intend or expect that this data will identify specific, similarly situated comparators or that it will establish pay discrimination as a legal matter.” (81 Fed. Register 135, 45489 (July 14, 2016).) Here are some things to keep in mind as this matter unfolds:
- As a result of the recent government shutdown, the EEO-1 filing deadline is now May 31, 2019. This gives employers little time to dramatically overhaul their reporting systems in order to comply. (Recall that the 2016 changes expanded the form from 180 data cells to 3,660 data cells—quite an undertaking for employers.)
- As of now, there is no word on whether the government will appeal the judge’s decision or whether the decision will be stayed pending any appeal.
- Because the EEOC currently lacks a quorum, it is unclear whether it has the ability to change this deadline in response to the court’s decision or otherwise offer some guidance to reporting employers.
- The opposition of a few Republican senators to a nomination package that would have given Republicans a 3–2 majority on the EEOC is now an even more remarkable self-own, as such a majority could have addressed the 2016 EEO-1 changes on its own.
This is obviously a significant—and developing—matter. The Buzz expects to be reporting on more EEO-1 developments in the near future.
FLSA Joint Employer. Late last week, the U.S. Department of Labor’s Wage and Hour Division (WHD) transmitted to OIRA its proposed changes to the Fair Labor Standards Act’s (FLSA) implementing regulations on joint-employer status. With the release of the overtime NPRM, this proposal joins the WHD’s regular rate changes in the queue awaiting OIRA approval. While the proposal hasn’t been made public, previous public reports on this matter indicated that a revised FLSA joint-employer regulation could be largely based on the four Bonnette factors, which examine whether the putative employer (1) hires and fires employees, (2) supervises and controls employee work schedules or conditions of employment, (3) sets rates and methods of pay, and (4) maintains personnel records.
OFCCP TRICARE News. Not to be outdone by the WHD, this week the Office of Federal Contract Compliance Programs (OFCCP) sent to OIRA a proposed regulation that “would include limiting and otherwise altering the obligations of TRICARE and other healthcare providers covered by these authorities.” In 2014, OFCCP announced a five-year moratorium on investigations of healthcare contractors participating in the TRICARE federal healthcare program. This moratorium was re-upped for another two years in 2018. Of course, this moratorium could be lifted at any moment so the regulation would provide some more certainty to the regulated community. Moreover, OFCCP has yet to address the underlying question of whether contractors participating in TRICARE and other federal healthcare programs are “subcontractors” within the scope of OFCCP’s jurisdiction.
H-4 EAD. As we mentioned two weeks ago, also pending at OIRA (it must be busy at OIRA these days) is a United States Citizenship and Immigration Services proposal to rescind the work authorizations of spouses of H-1B professionals. If finalized, this regulation will likely have a significant impact not just on employers, but also on the economy. This article does a good job of explaining why.
OSHRC on Workplace Violence. Last week, the Buzz discussed a U.S. House of Representatives hearing and an Occupational Safety and Health Administration rulemaking that both concern workplace violence in healthcare and social services industries. The Occupational Safety and Health Review Commission (OSHRC) has a role to play in this issue too. This week, OSHRC, for the first time, affirmed a general duty clause citation alleging a workplace violence hazard posed by a client of an employer in the social services industry. With this decision, along with a recent decision that vacated a general duty clause citation concerning exposure to excessive heat, the OSHRC is attempting to define some parameters regarding the scope, purpose, and application of the Occupational Safety and Health Act’s general duty clause.
Star-Spangled Anniversary. On March 3, 1931, President Herbert Hoover signed into law a bill designating “The Star-Spangled Banner” as our national anthem. Of course, the anthem combines music from an English drinking song with lyrics from lawyer Francis Scott Key’s poem (is there anything lawyers can’t do?) about the 1814 defense of Baltimore’s Fort McHenry during the War of 1812. The bill to “anthemize” “The Star-Spangled Banner” was championed by Maryland Representative John Linthicum. However, the legislative battle wasn’t easy: because Linthicum’s district encompassed parts of Baltimore, some of his fellow representatives accused him of simply wanting to promote his home district’s history. In the end, of course, Linthicum succeeded by diverting Hoover’s attention from our disastrous economy to sign the legislation into law.