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New Year Brings New Opinion Letters From DOL’s Wage and Hour Division

On January 7, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued three opinion letters, two of which concerned the Fair Labor Standards Act (FLSA). (The other dealt with the Family and Medical Leave Act of 1993.) These opinion letters are the first of the new year and a new decade. Below is a synopsis of the two FLSA-related opinion letters.

Latest Set of DOL Opinion Letters Clarify FLSA Salary Basis and Overtime Calculations, Government Agency FMLA Coverage

Getting the new year off to a quick start, the United States Department of Labor issued three Opinion Letters on January 7, 2020. These letters concern the salary basis test and overtime calculations under the Fair Labor Standards Act (FLSA), and government agency eligibility determinations under the Family and Medical Leave Act (FMLA). While the FLSA overtime and FMLA eligibility letters provide straightforward answers to more technical questions, employers would be wise to temper the broad sweep of the FLSA salary basis letter with a caveat or two.

FMCSA Raises Random Drug Testing Rate to 50% For 2020

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration announced on December 27, 2019 that beginning on January 1, 2020, the minimum annual percentage rate for random drug testing is 50% of the average number of driver positions. The minimum annual percentage rate for random alcohol testing will remain at 10%.

EEOC Renews Request to Close Component 2 Pay Data Portal

EEOC has filed another Motion with the court seeking an Order deeming Component 2 pay data collection complete. In its most recent filing, EEOC requests the Court to revisit its previous decision and deem the collection obligation satisfied or, in the alternative, provide clarification “regarding the response rate at which the Court will deem the EEOC’s collection to be complete.” As a reminder, EEOC’s previous motion requesting the permission to close the portal was denied. Instead Judge Chutkan ordered the agency to keep the portal open until at least January 2020 to allow for additional data collection. EEOC reports it is costing approximately $150,000 a week to maintain the site.

EEOC Rescinds Policy Opposing Mandatory Arbitration of Employment Discrimination Claims

The Equal Employment Opportunity Commission (EEOC) has rescinded its position that mandatory arbitration agreements that cover employment discrimination claims undermine the enforcement of U.S. anti-discrimination laws. This policy change is consistent with recent U.S. Supreme Court decisions that have endorsed the use of arbitration agreements, including in the employment context.

Beltway Buzz, December 12, 2019

USMCA on the Way? Lawmakers on both sides of the political aisle claimed victory this week over what appears to be a breakthrough in negotiations over the United States–Mexico–Canada Agreement (USMCA) trade agreement. Of particular importance to the Buzz are two significant labor-related changes that appear to be catalysts in breaking the logjam.

Fall Regulatory Agenda Indicates DOL Wage and Hour Division is Working on Seven Regulatory Priorities

The U.S. Department of Labor issued its bi-annual regulatory agenda update on November 20, 2019. Of the 63 items listed, the Wage & Hour Division (WHD) included seven regulatory priorities. Only one of these is new: a planned Notice of Proposed Rulemaking (NPRM) on the regulations at 29 C.F.R. Part 531, which interpret section 3(m) of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 203(m). Section 3(m) allows employers to count the reasonable cost of furnishing employees with board, lodging, or other facilities towards the minimum wage obligation. The WHD plans to issue an NPRM later this year to clarify the meaning of “other facilities” and to provide additional compliance guidance.

EEOC, NLRB, DOL Plan to Issue Rules Governing Joint Employment

The Equal Employment Opportunity Commission, National Labor Relations Board, and the Department of Labor will all issue regulations governing joint employment, according to the federal government’s Unified Agenda of Federal Regulatory and Deregulatory Actions – Fall 2019 (regulatory agenda), released on November 20, 2019. The regulatory agenda lists agency rulemaking activities at various stages of development, and includes a description of agencies’ priorities for the upcoming months. While the deadlines are often aspirational, they do provide insight into which rules are advancing. A discussion of the DOL’s Wage and Hour Division regulatory priorities, including its upcoming rule on joint employment, can be found here. This article focuses on the EEOC’s and NLRB’s agenda items.

Beltway Buzz, November 15, 2019

DACA at SCOTUS. On November 12, 2019, the Supreme Court of the United States heard oral argument in a series of cases challenging President Donald Trump’s termination of the Deferred Action for Childhood Arrivals (DACA) program in September 2017.

DOL Clarifies the Exempt Nature of Participation in the Department of Defense’s Skill Bridge Program

In 2013 the United States Department of Defense founded Skill Bridge, a program that partners the U.S. Armed Forces with private employers to provide internships to active duty service members during their last six months of military service. Service members obtain valuable skills by participating in Skill Bridge—skills that allow them to transition into the work force with minimal impact after discharge. Participating employers obtain highly skilled and motivated individuals who may become employees after their service is completed.
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