August 29, 2017
Overtime Rule This fall, the Labor Department will be reviewing all of the comments it receives on the extensive set of questions it asked on how the agency should revise the Obama-era overtime rule. Importantly, the request for information does not start the formal rulemaking process for updating the rule or describe a proposed replacement. In November 2015, a federal judge in Texas blocked the Obama administration's final overtime rule from taking effect, a decision which is now on appeal in the Fifth Circuit. In June, DOL told the appeals court that it will not issue a new proposed rule until after the court affirms the agency has the authority to use an employee's salary as a basis for determining overtime eligibility. Public comments are due on September 25, 2017, and HR Policy intends to submit a comprehensive response.
Republican Majority Finally Emerging at NLRB After a slow start, the administration is finally moving towards restoring balance to the National Labor Relations Board—a task that, given the extent and number of the Obama-era NLRB's decisions, will not happen overnight. The Senate will consider the final Trump nominee to the NLRB, William Emanuel, after returning from the August recess. In confirming Emanuel, the Senate would shift the NLRB majority over to the Republicans, who are now tied 2-2 with Democrats on the board after NLRB Member Marvin Kaplan's nomination in early August. However, another Republican vacancy will occur in December, when Chairman Phil Miscimarra steps down, which means the administration and Senate will need to act quickly to retain the Republican majority. In November, the term of Democrat Richard Griffin, the current NLRB General Counsel, expires, opening the spot for another Republican. Under the National Labor Relations Act, the general counsel has broad authority to issue unfair labor practice complaints, dismiss unfair labor practice charges, and bring cases to the board. Once the new General Counsel and Board members are in place, the NLRB can begin rolling back the 4,559 years of precedent upended by the Obama-era NLRB.
Joint Employer Legislation and a Potential Supreme Court Landmark A bipartisan bill that would reverse the controversial 2015 NLRB Browning-Ferris test while also clarifying the joint employer standard under the Fair Labor Standards Act will likely be marked up by the House Education and Workforce Committee this fall. Under the "Save Local Business Act" (H.R. 3441), sponsored by Rep. Bradley Byrne (R-AL), an employer would be considered a joint employer only if it: "Directly, actually, and immediately, and not in a limited and routine manner, exercises significant control over the essential terms and conditions of employment." Separately, the House 2018 Labor-HHS appropriations bill includes a policy rider that would block the NLRB's decision to expand joint employer liability for one year. However, it is unclear at this point if the rider will be included in the final funding bill. Meanwhile, HR Policy and other business groups have urged the U.S. Supreme Court to review a decision by the Fourth Circuit in the DirecTV case, which holds employers jointly liable unless they can prove that they are "completely disassociated."
EEOC Agenda A delay in nominating and confirming new EEOC commissioners will likely delay any substantive policy changes until 2018. Unless Congress stops the new EEO-1 pay data reporting requirement through the appropriations process this fall, or OMB suspends the requirement as requested by HR Policy and other trade associations, as of now the first pay data reports are due no later than March 31, 2018 for calendar year 2017 data. The EEOC will also have to redo its wellness program rules given a recent court decision (separate health care story), but for now the current rules remain in place.
Fall Global Labor and Employment Relations Conference Set for November 14-15 This year, our annual Fall labor conference is expanding to two days and will include coverage of global issues as well. We will be joined by our global allies—BEERG, APERG and LAMERG. The meeting will be generously hosted by the Gibson Dunn law firm. Outside speakers will include House Education and the Workforce Chair Virginia Foxx (R-NC), former NLRB Member Harry Johnson III, former DOL Solicitor Gene Scalia, and former NLRB Chair Wilma Liebman.