Fall Regulatory Agenda Updates Action on Joint Employer, Immigration, Health Care, and Union Election Rules

November 22, 2019

The Trump administration signaled its regulatory priorities for 2020 in its Fall Regulatory Agenda, which gave notice of several notable proposed and final rulemakings in the areas of joint employer, high-skilled work visas, the Obama-era “ambush” election rules, and several health care rules that will impact employer plans.

Joint employer:  Final rules clarifying joint employer status are scheduled to be released next by the DOL and NLRB.  Meanwhile, the EEOC plans to release a notice of proposed rulemaking this December.

  • The NLRB’s joint employer rule will replace the Obama-era Browning-Ferris standard for joint employer liability, likely establishing instead that an alleged joint employer “must possess and actually exercise substantial direct and immediate control” over the essential terms and conditions of another company’s employees “in a manner that is not limited and routine.”

  • The DOL’s rule will impose joint employer status under the Fair Labor Standards Act in situations where an employer actually exercises, directly or indirectly, significant control over the terms and conditions of an employee’s work.  However, consistent with HR Policy Association's Workplace 2020 proposal, the measure would specifically allow employers to “to institute workplace safety practices, a wage floor, or sexual harassment policies...and certain other business practices” without triggering joint employer liability.

  • The EEOC’s notice of proposed rulemaking would “clarify when an entity is covered under the federal EEO laws as a joint employer, and consolidate the EEOC's position on the topic to regulatory locations that are easier for the public to find.”  Further details are lacking. 

Temporary work visas:  The Department of Homeland Security adjusted the timeline for several notices of proposed rulemaking regarding the H-1B high-tech visa in addition to setting a date to issue a proposed rulemaking restricting L-1 visas.

  • DHS has indicated it will issue proposed rulemaking this December focused on the H-1B high-skill temporary work visa that would revise the definitions of “specialty occupation,” “employment,” and “employer-employee relationship” and impose requirements “designed to ensure employers pay appropriate wages to H-1B visa holders” in an effort to clamp down on use of the visa.

  • In March of 2020, the agency plans to issue proposed rulemaking revoking employment authorization from spouses of H-1B workers.

  • In September 2020, the agency plans to release proposed rulemaking focused on the L-1 visa, which allows U.S. employers with offices in the U.S. and abroad to transfer an employee to the U.S.  The proposed rulemaking would “revise the definition of specialized knowledge, clarify the definition of employment and employer-employee relationship, and ensure employers pay appropriate wages to L-1 visa holders.”

“Ambush” elections:  After several Request for Information periods, the NLRB will revisit the Obama NLRB’s rulemaking on labor representation elections, a.k.a. “ambush” election rules, with a final rulemaking this month. 

Pay data reporting:  The EEOC also announced plans to introduce new pay data reporting requirements.  Read our reporting on the EEOC proposed regulations.

Key health care rules:  The EEOC plans to issue proposed wellness program rules regarding the kinds of incentives employers can offer employees to participate in their programs.  In addition, a proposed rule from the IRS on how the ACA’s Cadillac tax will be implemented is expected in June 2020. 

Outlook:  The twice-annual regulatory roadmap is not the final say on when, or if, regulatory movement happens and is notoriously ambitious in the timelines it sets out.  This is evident especially in the area of immigration, with a number of administration priorities having been in limbo for several years now as due dates keep extending.  However, with the 2020 elections bearing down, dates for final rules in vital areas such as joint employer are beginning to emerge.