Right of First Refusal EO Revoked. Last week, President Trump issued an Executive Order revoking Executive Order 13495 issued by President Obama in January 2009. EO 13495 required that successor Federal service contractors (in certain circumstances) offer a right of first refusal of employment to employees employed under the predecessor contract. All investigations and other compliance actions have been immediately terminated. Both DOL and the FAR Council have been directed to withdraw their regulations and presumably will do so shortly.
Bonuses and Salaries, Together Again? The Wage & Hour Division this week issued a proposed rule regarding the fluctuating workweek method of payment. Under the fluctuating workweek, an employer may pay an FLSA non-exempt employee a salary for all hours worked (both straight-time and overtime), and a half-time overtime rate for all hours over 40. As discussed in Seyfarth's Wage & Hour Litigation blog, an Obama Administration policy limited the ability of employers to pay additional amounts—e.g., bonuses and premium payments—to employees under the fluctuating workweek. The proposal would allow employers to make such payments. Comments are due by December 5, 2019.
OFCCP Clarifies TRICARE Provider Obligations. Earlier this week, OFCCP announced a proposed rule in which it seeks to conclusively establish that OFCCP has no authority over federal healthcare providers that participate in TRICARE, the healthcare program for uniformed service members, retirees and their families. First, it proposes to state that it simply lacks the authority. As a backup, it seeks to establish a national interest exemption. This issue has had a long and tortured history involving ongoing litigation before DOL’s Administrative Review Board, changing OFCCP Directives, and the Congress in the form of several oversight hearings and provisions in the National Defense Authorization Act. Comments on OFCCP’s proposal are due on December 6, 2019.
Another One Bites the Dust. As we have reported frequently, state legislation eliminating at least some use of noncompete agreements continues to thrive around the country. Rhode Island has jumped on the bandwagon, eliminating noncompetes for low-wage workers effective January 15, 2020. For more information, see Seyfarth’s Trading Secrets blog.
EEOC Weighs In. The Equal Employment Opportunity Commission has filed an amicus brief in the case of General Motors LLC, 14-CA-197985 and 14-CA-208242 in which the NLRB has asked for input on reshaping rules under Section 7 governing offensive language in the workplace. Read the notice and invitation to file briefs. The brief squarely sets out the reasons the Board should revisit standards which in the past have been overly deferential to sexual or racial charged language in the workplace under Section 7 and the untenable position this places employers in who must follow and implement the Nation’s civil rights laws to eliminate hostile work environments. The deadline for briefs on this important issue was extended by the Board from November 4 to November 12. Seyfarth will be filing an amicus in the case on both the civil rights issues and the broader question of how offensive language in the workplace should be governed under Section 7 generally.
SECURE Act. On November 5, numerous groups sent a letter to House and the Senate leaders urging passage of the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act, H.R. 1994) which passed the House on May 23, 417-3. On Tuesday, Leader McConnell hotlined a UC request for a limited time agreement and a limited list of five SECURE-related amendments. Stay tuned, but Senators have in the past have raised objections.
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