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Beltway Buzz, November 16, 2018

Congress Returns. While New York has an awesome duck, Washington, D.C., has a lame duck. Yes, Congress returned this week for its post-election lame-duck session. Both the U.S. House of Representatives and Senate are scheduled to be in session until December 14, 2018 (with the week of Thanksgiving off), but that targeted adjournment date can always be moved up or extended.

DOL Extends PAID Program, Presenting Employers with "Third Option" to Release FLSA Claims

In an effort to create a win-win solution for both employers and employees, the Department of Labor has extended its pilot compliance program, called the Payroll Audit Independent Determination (PAID). The purpose of this program is to help employees get paid for wages they have earned and to help employers correct past payroll mistakes.

DOL, IRS and HHS Issue Proposed Rules to Bolster Health Reimbursement Arrangements

The US Department of Labor, jointly with the IRS and the Department of Health and Human Services, released proposed rules for Health Reimbursement Arrangements. The proposed rules were in response to President Trump's Executive Order promoting healthcare choices outside of the Affordable Care Act, which included allowing small businesses to join association health plans.

Beltway Buzz, November 2, 2018

Joint-Employer Update. As a pre-Halloween treat to stakeholders who are preparing written comments on the National Labor Relations Board’s (NLRB) proposed joint-employer rule, on October 30, 2018, the NLRB extended by 30 days the comment due date. The extension was likely due to a recent letter from congressional Democrats who asked for an additional 60 days within which to file comments. Comments, which were originally due on November 13, 2018, are now due on December 13, 2018. Further, this week NLRB Chairman John F. Ring disputed an article in Bloomberg BNA regarding the Board’s response to Democrats’ demand for information relating to the ongoing joint-employer rulemaking. Ring also decried the invasion of politics into Board processes. While the Buzz tends to agree with Ring’s latter comment, we don’t think that politics will be separated from Board policies anytime soon.

Proposed Rule Aims to Resurrect Health Reimbursement Arrangements

Under a proposed rule that the Department of Labor (DOL), Department of the Treasury, and the Department of Health and Human Services (HHS) jointly issued on October 29, 2018, employers may soon have more flexibility to fund health insurance coverage for employees through health reimbursement arrangements (HRAs), other account-based group health plans, and individual health insurance policies. The proposed rule uses the term “HRA” to encompass all types of account-based group health plans.

USDOL Promotes Continuation of PAID Program

Earlier this year we shared that the U.S. Department of Labor (USDOL) was launching its Payroll Audit Independent Determination (PAID) program. This month the program was extended and the agency wasted no time beginning its efforts to further educate employers and attorneys about the program. As a recent presentation in greater-Atlanta confirmed, the public still is skeptical. Nonetheless, PAID might just have a place.

Beltway Buzz, October 26, 2018

Agencies Propose HRA Expansion. On October 23, 2018, the U.S. Department of the Treasury, U.S. Department of Health and Human Services, and U.S. Department of Labor issued a proposed regulation to expand the use of health reimbursement arrangements (HRAs), which allow employers to reimburse employees for certain out-of-pocket healthcare expenses with money that is not counted as taxable income. In part, the proposal would allow employers to use HRAs to reimburse employees for the cost of health insurance plans that they might purchase on the individual market as a way to make it more affordable for those who are not covered by an employer-sponsored plan to obtain health insurance. The secretaries of the respective agencies described their proposal in the Wall Street Journal this week. Comments are due by December 28, 2018, and the agencies propose that the regulation become effective for plan years beginning on and after January 1, 2020.

Beltway Buzz, October 19, 2018

Deal on Nominees Excludes Labor and Employment Personnel. The U.S. House and Senate are in recess (sort of) until after the November 6 elections. Before leaving town, the Senate confirmed a package of 15 federal judges and 21 executive branch nominees. None of the executive branch nominees included anyone from the Department of Labor (DOL), National Labor Relations Board (NLRB), or Equal Employment Opportunity Commission (EEOC). Thus, the next opportunity for candidates like Cheryl Stanton (nominated to be administrator of the DOL’s Wage and Hour Division (WHD)), Scott Mugno (nominated to be assistant secretary of labor for the Occupational Safety and Health Administration (OSHA)), Mark Gaston Pearce (nominated to be a member of the NLRB), Sharon Fast Gustafson (nominated to be general counsel of the EEOC), and others to be confirmed will be the congressional “lame duck” session beginning in mid-November. If the nominees are not confirmed before the Senate adjourns sine die, their nominations will have to be resubmitted by the president.

Joint Employment, Wage and Hour Changes are on the Regulatory Horizon

Employers will face fewer significant regulations in the coming year, according to the Trump administration's Unified Agenda of Regulatory and Deregulatory Actions ("regulatory agenda"). Released on October 17, 2018, the fall regulatory agenda outlines each agency's rulemaking efforts at any stage in the process—from requests for information to final regulations—and gives estimated timelines for completion. This regulatory to-do list provides insight into the administration's upcoming priorities.

DOL Delays Overtime and Tip Credit Rules, Plans Joint Employment Rule

The latest regulatory agenda from US Department of Labor (DOL) outlines the agency's plans for rulemaking that will affect employers across the nation. Among the most notable developments are: