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Beltway Buzz, August 16, 2019

Ogletree Deakins • August 18, 2019
Final Overtime Rule Advances. The U.S. Department of Labor’s Wage and Hour Division’s proposal to increase the salary threshold regarding overtime pay to slightly more than $35,000 per year took another step forward in the regulatory process this week. On August 12, 2019, the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) received a draft of the final rule for review. As the Buzz has discussed on multiple occasions, OIRA is a regulatory gatekeeper of sorts and is the first and last stop in the rulemaking process for most regulations.

Third Thursdays with Ruthie: Lessons Learned From Recent Cases

Ogletree Deakins • August 18, 2019
In this episode of the Third Thursdays podcast, Ruthie Goodboe examines two recent circuit court labor cases—one involving protections for striking employees and the other involving protected speech versus unprotected threats during union campaigns—and the practical lessons and tips that employers can take away from these two important holdings.

H-1B Electronic Registration Fee Expected

Jackson Lewis P.C. • August 18, 2019
Employers have paid about $7 billion in H-1B fees over the past 10 years. Now, a new fee is coming – the electronic registration fee.

Do The DOL’s FMLA Forms Work For You? Now is Your Chance to Speak Up

Jackson Lewis P.C. • August 18, 2019
On August 5, 2019, the Department of Labor (“DOL”) published proposed revisions to the Wage and Hour Division’s Family and Medical Leave Act (“FMLA”) forms with the stated goal “to increase compliance with the FMLA, improve customer service, and reduce the burden on the public by making the forms easier to understand and use.”

OFCCP Proposes New Rule to “Ensure Religious Employers are Protected”

Jackson Lewis P.C. • August 18, 2019
As previewed in the Spring regulatory agenda, the Office of Federal Compliance Contract Programs (OFCCP) has proposed a new rule to clarify aspects of a religious exemption available to federal contractors. In the proposed rule, the agency said it intends to address concerns from religious organizations that ambiguity in the exemption left them reluctant to participate in federal contracts.

Will Mississippi Employers Face Charges After Massive ICE Raid?

XpertHR • August 18, 2019
US Immigration and Customs Enforcement (ICE) agents carried out what's being called the largest statewide workplace enforcement action in the nation's history in arresting 680 undocumented workers at several Mississippi food processing plants last week. ICE also seized records from the companies that employed these workers.

DOL Eases Roll-Over Rules for Left-Behind 401(k) Funds

XpertHR • August 18, 2019
The Department of Labor (DOL) has issued a final exemption to make it easier for employers to transfer 401(k) plan funds left behind by former workers to their new employers' plans. The rule is expected to help many employers in industries with high labor turnover (such as retail) who must keep records of numerous small accounts, try to track missing participants and deal with uncashed distribution checks. Employees are likely to benefit by having their retirement assets follow them more easily from job to job and consolidate their savings.

Circuit Split on Student’s Due Process Right to Cross-Examination in Title IX Matters

Jackson Lewis P.C. • August 18, 2019
Constitutional due process does not mean a student accused of assault has the right to directly cross-examine his accuser in adjudications under Title IX of the Education Amendments of 1972 at state institutions of higher education, the federal appeals court in Boston has held. Haidak v. University of Massachusetts-Amherst, No. 18-1248 (1st Cir. Aug. 6, 2019).

EEOC Provides Guidance on EEO-1 Filing for Non-Binary Employees

Littler Mendelson, P.C. • August 18, 2019
The Equal Employment Opportunity Commission (EEOC) recently released guidance in an FAQ to employers as to how they should report non-binary employees on Form EEO-1.

DOL Gives Working Parents FMLA Pass to Attend Children’s Special Education Meetings

Franczek Radelet P.C • August 18, 2019
In what is perhaps an agency first, the Wage and Hour Division of the U.S. Department of Labor (DOL) recently issued a letter in response to a request from a concerned parent. The parent sought an opinion on whether the Family Medical Leave Act (FMLA) would provide job protection to an employee who takes time off to attend individualized education program (IEP) meetings for their children. In a somewhat surprising turn of events given the current political climate, the DOL determined that parents may take intermittent leave under the FMLA to attend these meetings for children who have “serious health conditions.”

President Trump Announces Nomination to Second Circuit Court of Appeals

FordHarrison LLP • August 18, 2019
Executive Summary: On August 14, 2019, President Trump nominated Steven J. Menashi, a conservative, to the United States Court of Appeals for the Second Circuit to fill the vacancy left by Justice Dennis Jacobs upon taking senior status on May 31, 2019. Menashi currently serves as the President’s Special Assistant and Senior Associate Counsel. His nomination is pending confirmation by the Senate.

California Pay Equity Data Collection Legislation Closer to Passing

Ogletree Deakins • August 18, 2019
Currently, certain employers are required under federal law to file annual Employer Information Reports (EEO-1) with the Equal Employment Opportunity Commission. These EEO-1s must contain data regarding demographics of the employer’s workforce. Accordingly, employers covered by federal EEO-1 reporting requirements were required to file EEO-1 Component 1 data from 2018 by May 31, 2019, and must still submit Component 2 EEO-1 (pay and hours worked) data for their workforces by September 30, 2019. Not to be outdone, the State of California is poised to impose a similar requirement on employers.

New Notification Requirements in New York for Healthcare Providers Facing a Cybersecurity Incident

Jackson Lewis P.C. • August 18, 2019
On August 12, Mahesh Nattanmai, New York’s Chief Health Information Officer, issued a notice letter (“the notice”) on behalf of the New York State Department of Health (“Department”) requiring healthcare providers to use a new notification protocol for informing the Department of a potential cybersecurity incident. The updated protocol is considered effective immediately from a healthcare provider’s receipt of the notice letter.
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