United States: D.C. Download: An Inside Look At Key Issues From Capitol Hill

Overtime

On June 30, 2017, the U.S. Department of Labor (DOL) filed its reply brief with the Fifth Circuit Court of Appeals in the case that enjoined the previous administration's changes to the rules governing overtime eligibility. The DOL attempts to thread the needle in its brief by arguing that the Secretary of Labor should have the ability to set a salary basis level but declines to defend the salary level set by the 2016 rule. In conjunction with this filing, on July 26, 2017, the DOL issued a Request for Information (RFI) which will solicit additional comments on the overtime rule. This is the first step in the administrative rulemaking process that could result in the DOL proposing to swap out the previous administration's 2016 changes to the overtime regulations with its own changes—presumably with a more modest salary basis threshold increase.

Administrator's Interpretations

On June 7, 2017, the DOL withdrew the Wage & Hour Division's 2015 and 2016 informal guidance on joint employment and independent contractors. The DOL's repeal of the guidance documents perhaps signals a return to a more cooperative, rather than enforcement-based, approach to compliance with the Fair Labor Standards Act.

Return of Opinion Letters

On the heels of the rescission of the "Administrator's Interpretations," on June 7, the DOL announced that it will once again be issuing opinion letters, a process that allows stakeholders to ask the DOL's Wage & Hour Division to explain in writing how federal law would apply in specific circumstances. This approach to compliance was scrapped in 2010 in favor of generalized "Administrator's Interpretations," so this is welcome news for employers.

"Persuader" Regulation

On June 12, 2017, the DOL issued a Notice of Proposed Rulemaking that rescinds the 2016 persuader regulation. The public has until August 11 to file comments with the DOL. While this regulatory rollback is pending, the Fifth Circuit Court of Appeals agreed to the DOL and DOJ's request to hold the appeal of the nationwide injunction of the 2016 persuader rule in abeyance by granting a six-month stay.

NLRB Nominees

In the last two weeks of June, President Trump nominated labor attorney William J. Emanuel and Occupational Safety and Health Review Commission (OSHRC) counsel Marvin Kaplan to fill two empty seats on the five-member National Labor Relations Board (NLRB). If the nominees are approved, the NLRB will flip from its current 2-1 Democratic majority to a 3-2 Republican majority.

New EEOC Chair on the Way?

On June 29, 2017, President Trump nominated Janet L. Dhillon, Executive Vice President, General Counsel, and Corporate Secretary of Burlington Stores, Inc., to be chair of the U.S. Equal Employment Opportunity Commission (EEOC). It had been assumed that Acting Chair Victoria A. Lipnic—who has been serving in her current capacity since January and as a commissioner since 2010—would be named chair.

OSHA Electronic Injury and Illness Reporting

On June 27, 2017, the Occupational Safety and Health Administration announced that it is proposing December 1, 2017, as an initial deadline for the electronic filing of covered employers' 300A forms. Pursuant to a rule finalized in May 2016, covered employers originally would have had to submit the forms by July 1, 2017. The proposal was open for public comment until July 13.

Apprenticeship Executive Order

On June 15, 2017, President Trump signed an Executive Order that is intended to promote more practical, efficient, and streamlined apprenticeship programs. The order would limit "one size fits all" regulation of apprenticeship programs to provide employers with more freedom in developing programs that are tailored for their particular business needs. Proposed implementing regulations are expected to follow.

EEOC/OFCCP Merger?

As part of its FY2018 budget proposal released at the end of May, the administration is proposing to merge the EEOC and the Office of Federal Contract Compliance Programs (OFCCP). The administration claims that eliminating redundancies between the agencies will create efficiencies and cost savings. Congress will have the final say on the proposal, of course, and so far both the civil rights and contracting communities have voiced opposition.

Fiduciary News

On June 9, 2017, certain components of the DOL's fiduciary rule went into effect. Additionally, the U.S. Securities and Exchange Commission (SEC) announced that it will be soliciting input on the current regulatory framework and the state of the market for retail investment advice.

New H-1B Regulations?

In response to a congressional inquiry into the H-1B visa program, United States Citizenship and Immigration Services (USCIS) replied in a May 24 letter that the agency "will, as soon as practicable and consistent with the applicable law, propose new rules and issue new guidance relating to the H-1B visa program." The letter further states that such rules and guidance would "protect the interests of U.S. workers."

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