Labor Secretary’s Year in Review. Secretary of Labor Alex Acosta was sworn in approximately one year ago this week (on April 28, 2017). Now that he has survived one year as secretary of labor, the Buzz thinks it is an appropriate time to review some of the secretary’s policy accomplishments. Within the past year, the U.S. Department of Labor (DOL) has achieved the following:
- Resuscitated the popular and effective opinion letter process, reinstated 17 “old” opinion letters, and also issued three new opinion letters on the compensability of travel time and 15-minute breaks and lump-sum payments and garnishments;
- Replaced the DOL’s frequently criticized test for determining whether interns should be classified as employees under the Fair Labor Standards Act (FLSA) with the “primary beneficiary” test, which is favored by the appellate courts;
- Scrapped the concept of issuing Administrator’s Interpretations (AIs), and specifically rescinded AIs relating to joint employment and independent contractors that stretched the bounds of the law;
- Began the process of evaluating and potentially amending the Part 541 overtime regulations in July 2017, by issuing a request for information—the first step in the rulemaking process;
- Began the process of correcting the DOL’s 2011 tip pool regulation, which exceeded the Department of Labor’s statutory authority;
- Proposed regulations expanding access to Association Health Plans (AHPs), which are intended to reduce health care costs;
- Initiated the process of undoing the 2016 “persuader” interpretation, which would have required public disclosure of attorney-client relationships;
- Launched the Payroll Audit Independent Determination (PAID) program to encourage employers to voluntarily correct mistakes made in the payment of wages to employees; and
- Instituted a more cooperative and holistic approach to compliance from the Office of Federal Contract Compliance Programs (OFCCP).
While you can’t please everyone all the time, the Buzz thinks this is a pretty significant list—especially for the first year. As key personnel continue to join the DOL and gain experience, the Buzz will continue to monitor future policy developments at the Department of Labor.
A Kinder, Gentler OFCCP? As a follow-up to a 2016 Government Accountability Office (GAO) report and subsequent Compliance Assistance Town Halls in the fall of 2017, earlier this week OFCCP released its “Town Hall Action Plan.” The plan sets forth action steps in each of three main areas of focus that were generated from the town hall meetings: training, communication, and trust. Some specific actions that contractors can expect to see in the future include the following:
- OFCCP will create three comprehensive technical guides to replace old and outdated contractor guidance.
- OFCCP will issue a written guide to the compliance evaluation process for contractors.
- OFCCP will create a “Bill of Rights” for contractors that “will outline certain OFCCP principles that contractors can expect to exist during an engagement with OFCCP.”
Demands for Employer Data Continue. Recently, an investigative media outlet filed a lawsuit against the DOL alleging that OFCCP failed to comply with its Freedom of Information Act (FOIA) request for EEO-1 reports filed by various federal contractors. According to the complaint, the FOIA request was denied on the grounds that the EEO-1 reports contain privileged or confidential trade secrets or commercial information (FOIA Exemption 4) and that the DOL has failed to rule on the appeal of this determination. Such lawsuits not only demonstrate that the media, policymakers, and special interest groups have an ongoing desire for confidential employer data, but also validate why collecting employee salary and hours-worked data on the EEO-1 form would be problematic.
Preemption and FAA Reauthorization. Late last week, the U.S. House of Representatives passed a five-year reauthorization of the Federal Aviation Administration (FAA). On the labor and employment policy front, the bill prohibits state and local jurisdictions from applying a patchwork of meal and rest requirements to interstate truck drivers. The so-called “Denham Amendment” clarifies language in the Federal Aviation Administration Authorization Act of 1994 (F4A) that preempts states from enacting laws that interfere with a “price, route, or service” of a motor carrier. The Denham language became necessary because some courts had ruled that a California meal and rest break law was not preempted under F4A because it was not sufficiently “related to” prices, routes, or services.
OSHRC Extension. About one month ago, the Buzz reported that the Occupational Safety and Health Review Commission (OSHRC) was soliciting briefs in a case involving excessive heat and the general duty cause. Briefs were originally due this past Monday, April 30, but OSHRC has extended that deadline to May 14.
Slip Opinion. On Monday, the Supreme Court of the United States announced that Justice Sonia Sotomayor will undergo “reverse total shoulder replacement surgery” as a result of a “multipart displaced head splitting fracture of her proximal humerus.” Yikes. Sotomayor suffered the injury after a recent fall in her home. Unfortunately, this isn’t the first broken-bone mishap to befall Sotomayor. Supreme Court watchers may recall that then-nominee Sotomayor broke her ankle rushing to make a flight to visit with U.S. senators as part of her nomination process. Then, in 2014, Justice Sotomayor tripped on a sidewalk in New York City, breaking several bones in her hand. The Buzz seems to recall from our law school torts class something about eggshell plaintiffs, but nothing about eggshell justices. In all seriousness, though, the Buzz wishes Justice Sotomayor a quick and easy recovery.
The Buzz will be off on May 11 because we will be attending Ogletree Deakins’ sold-out 2018 National Workplace Strategies Seminar. We will return on May 18.