What's up for employers? Trump releases Fall '18 regulatory agenda

A preview of coming attractions!

The Trump Administration issued its Fall 2018 regulatory agenda this week, which includes many items of interest to employers. Here are the highlights:



EEOC WELLNESS REGULATIONS

No wellness rules until June 2019. In May 2016, the Equal Employment Opportunity Commission issued regulations relating to wellness programs and how participation could be considered "voluntary" for purposes of the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. (Long story, but you can get the background here.) The AARP sued the EEOC, and a federal judge in the District of Columbia found in favor of the AARP on most points. After giving the EEOC a chance to revise the rules, which the EEOC didn't do, the judge vacated portions of the rules. However, his decision was not to take effect until January 2019. The purpose of the delay was to allow the EEOC another chance to issue amended regulations.

Well, the regulatory agenda issued this week says that there will be no new wellness regulations until June 2019. This appears to mean that the existing wellness regulations will be officially vacated as of January 2019.

As I've noted before, President Trump's nominees for the EEOC -- Janet Dhillon as Chair, Daniel Gade as Commissioner, Chai Feldblum as Commissioner (reappointment), and Sharon Fast Gustafson as General Counsel -- have all been delayed, reportedly because some Republicans object to the reappointment of Ms. Feldblum. Presumably, this is why the EEOC hasn't been able to issue revised wellness regulations.

LABOR RELATIONS

No end to "quickies" anytime soon. The regulatory agenda says there are no plans in the next 12 months to issue regulations to amend or replace the "quickie election rule" issued by the Obama Administration and currently in effect. The current rule shortened the time for campaigns and streamlined election procedures, both of which are believed to disadvantage employers in union campaigns.

"Joint employer" standard under the National Labor Relations Act. The National Labor Relations Board issued proposed regulations in September to tighten the standard for finding a joint employer relationship for NLRA purposes. The proposed standard is more employer-friendly than the standard currently in effect -- meaning that, if final regulations are issued and take effect, it will become more difficult to establish that entities are "joint employers" under the NLRA. This is especially significant for franchisors and franchisees, and for staffing agencies and their clients. The comment period on the proposed regulations will close November 13.

Don't go away! There's more!
 

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

Workplace violence prevention in health care and social services. The review of OSHA's proposed standard under the Small Business Regulatory Enforcement Fairness Act will begin in March 2019. The SBREFA review was previously going to begin in January 2019.

Tracking of workplace injuries and illnesses. Proposed regulations issued in July would require employers to submit information about workplace injuries and illnesses to OSHA electronically, but would not require employers to submit their OSHA 300 logs or 301 incident reports. Final regulations are expected in June 2019.

OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS

Religious conscience protections for federal contractors. The Office of Federal Contract Compliance Programs will issue proposed regulations regarding protections for federal contractors who have religious objections to complying with certain OFCCP requirements, presumably directives prohibiting discrimination based on sexual orientation or gender identity. The proposed regulations may be issued in December 2018.  

Wait! We have even more!

WAGE AND HOUR

Overtime rule. We were originally supposed to have a new proposed overtime rule about a year ago. The deadline was then extended until October 2018. According to the regulatory agenda, the deadline has been pushed out yet again, to January 2019.

As I have reported earlier, the Wage and Hour Division of the U.S. Department of Labor conducted a number of "listening sessions" with the public during the month of September. We expect the proposed regulations, when they are finally issued, to raise the salary threshold for white-collar exemptions from the overtime provisions of the Fair Labor Standards Act. However, the Trump Administration threshold is not expected to be as high as the threshold of $913 a week that was adopted by the Obama Administration (and ultimately enjoined by a court). 

Clarification on calculating "regular rate." Overtime pay is based on an employee's "regular rate," which may or may not be the same as the hourly rate of pay or weekly salary divided by hours worked. (It's complicated, as you already knew.) Proposed regulations clarifying how employers should calculate the regular rate are expected in December 2018.

"Joint employment" under the FLSA. Proposed regulations on when entities are "joint employers" for FLSA purposes are expected in December 2018

You won't want to miss! No one will be seated after the first five minutes! It's the greatest regulatory agenda since Spring 2018!

Robin Shea has more than 20 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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