Friday, June 30, 2017

DOL Officially Changing Course on Persuader and Overtime Rules

Just days after withdrawing some of its guidance on joint employer and independent contractor issues, the U.S. Department of Labor (DOL) indicated it will soon reconsider the much maligned “Persuader Rule” and white-collar Overtime Rule that were both enjoined last fall. The DOL wants to rescind the Persuader Rule and plans to seek additional public comment on the white-collar salary thresholds set forth in the Overtime Rules.

As a reminder, the Persuader Rule would have required employers to publicly disclose when they use consultants (including lawyers) to obtain labor relations advice and services for the purpose of persuading employees regarding union organizing. The consultants/lawyers would also have been required to file reports containing details about their advice and the payments received for such advice. Previously, such reports were only required when a consultant providing advice had direct contact with employees. On June 12, 2017, the Federal Register published the DOL's proposal to rescind the Persuader Rule in order to consider “the potential effects of the Rule on attorneys and employers seeking legal assistance” and “the impact of shifting priorities and resource constraints.” Comments on this proposal are due by August 11, 2017.

Wednesday, June 21, 2017

The Unpopularity of the Proposed EEOC and OFCCP Merger

The Trump administration’s proposed budget for the upcoming federal fiscal year contains a streamlining proposal that is evoking strong opposition from both employer and employee groups. Namely, the administration has proposed merging the federal Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP).

Employers and employee rights groups are rarely on the same side of regulatory matters, but in this case, there is almost unanimous opposition to the proposed agency merger. Presumably, the Trump administration believes an EEOC and OFCCP merger is a plausible streamlining approach, because both organizations focus on enforcing federal laws focused on employment discrimination. Employee groups, however, worry that a merger will result in decreased enforcement efforts due to a lack of adequate agency funding, staff, and resources. The Trump administration’s merger proposal provides for the EEOC to absorb the OFCCP with no new financial resources to address merger logistics.

Friday, June 9, 2017

Department of Labor Withdraws Guidance on Joint Employer and Independent Contractor Liability

The U.S. Department of Labor (DOL) has withdrawn two informal regulatory interpretations, issued in 2015 and 2016, on the subjects of joint employer and independent contractor liability of employers. (See our previous blog posts about the related risks for employers, available here.)

The DOL’s announcement this week appears to signal a major course reversal in the wage and hour arena, particularly from 2016 when its Wage & Hour Division had made joint employment “a major focus.” This is likely true even though the DOL said, in announcing the withdrawal: “Removal of the two administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act . . . as reflected in the Department’s long-standing regulations and case law.”

Friday, June 2, 2017

Minnesota Governor Vetoes Uniform Labor Standards Bill

As expected, Minnesota Governor Mark Dayton has vetoed legislation passed by the Minnesota legislature that would have preempted local government’s ability to enact laws that set wage, vacation, or sick time requirements, or other employment benefit levels higher than those set by state-wide law. The vetoed legislation (the Uniform Labor Standards bill) was passed by the Minnesota state legislature late last month and was perceived, to a great degree, as a response to the enactment of Minneapolis and St. Paul city ordinances creating mandatory sick leave benefits for employees. Although it is difficult to predict with certainty, at this time a possible override of Governor Dayton’s veto appears unlikely.