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Beltway Buzz, October 12, 2018

Author: James J. Plunkett (Washington DC)

Published Date: October 12, 2018

PAID Persists. The U.S. Department of Labor’s (DOL) Wage and Hour Division’s (WHD) Payroll Audit Independent Determination (PAID) pilot program was set to expire this month, but it has been extended for another six months. The PAID program offers employers an avenue to quickly resolve potential overtime and minimum wage violations. While the program isn’t perfect (e.g., it doesn’t apply to state law violations), the Buzz applauds the WHD for exploring alternative pathways to compliance, rather than simply relying on enforcement.

D.C. Overtime Listening Session. Speaking of wage and hour issues, the DOL will hold a final public listening session on its pending overtime regulation proposal this Wednesday, October 17, 2018, at its headquarters in D.C. (if you haven’t been to the Frances Perkins Building, we highly recommend a visit: it truly is a beautiful building). In addition to generating potentially valuable stakeholder feedback that could be incorporated into an eventual notice of proposed rulemaking, these listening sessions are likely intended to assist the DOL in defending any final rule from an “arbitrary and capricious” challenge under the Administrative Procedure Act. The overtime proposal is currently scheduled to issue in early 2019.

OSHA Standard Tossed. In a recent case, the Occupational Safety and Health Review Commission (OSHRC) invalidated the Occupational Safety and Health Administration’s (OSHA) “quick drenching” standard that requires emergency eye-flushing and body-washing facilities on construction sites. OSHRC ruled that the Secretary of Labor did not have the authority to promulgate the standard. But there is much more than meets the—you guessed it—eye in this case. Our resident administrative law (and OSHA!) guru, Arthur G. Sapper, has the details on this significant decision.

EEOC Releases Harassment Data. Late last week, the Equal Employment Opportunity Commission (EEOC) released preliminary data on sexual harassment in the workplace in Fiscal Year 2018 (October 2017 through September 2018). Sadly, the data is not surprising. For example, the EEOC received a 12 percent uptick in charges alleging sexual harassment compared with Fiscal Year 2017. Further, the Commission filed 50 percent more lawsuits involving claims of sexual harassment than in Fiscal Year 2017. The EEOC was ahead of the curve on this vital matter, as it released this prescient report warning of the prevalence of sexual harassment in the workplace in 2016—well before major public stories of sexual harassment appeared in the media.

OFCCP Proposes Disability Inclusion Award. Late last week, the Office of Federal Contract Compliance Programs (OFCCP) proposed an Excellence in Disability Inclusion Award “that will recognize federal contractor and subcontractor establishments that ensure equal employment opportunity, foster employment opportunities for individuals with disabilities, and have achieved a level of excellence in their compliance” with applicable federal laws and regulations. While the process of applying for the award may be a bit tedious, winners “will be provided a two-year moratorium related to scheduled compliance evaluations.”

DOJ Civil Rights Chief Confirmed. On October 11, 2018, the U.S. Senate confirmed Eric Dreiband as assistant attorney general for the U.S. Department of Justice’s (DOJ) Civil Rights Division. This is the department within the DOJ that “enforces federal statutes prohibiting discrimination on the basis of race, color, sex, disability, religion, familial status and national origin.” Dreiband, who was nominated way back in June of 2018, is a former deputy administrator of the DOL’s WHD, and general counsel of the EEOC, among other positions. The Buzz thinks that Dreiband will be outstanding in his new role.

Yeezy Solutions to Difficult Problems. We tried to avoid writing about this, but we are nothing if not dedicated to our readers, and we wouldn’t be doing our job if we didn’t report on the biggest news of the week: yesterday’s Kanye West and Kid Rock White House summit (back in law school, we would have never predicted that, as licensed attorneys, we would one day write such a sentence). According to public reports, West visited with President Trump to discuss “manufacturing, prison reform and Chicago violence.” But the visit wasn’t just limited to serious policy discussions over lunch: Kid Rock attended President Trump’s signing of the Music Modernization Act (H.R. 1551, the Orrin G. Hatch–Bob Goodlatte Music Modernization Act). An interesting day at the White House to be sure. But in case you think this is all just a bit too goofy, recall that President Obama had his share of visits with some interesting people as well. And, of course, there was the most famous White House visit of all.

James J. Plunkett  (Washington DC)

James J. Plunkett
Jim Plunkett is a Senior Government Relations Counsel in the Washington, D.C. office of Ogletree Deakins. Jim was previously the Director for Labor Law Policy at the U.S. Chamber of Commerce where he focused on legislation, regulations, and policy decisions that impact the workplace. This included activity concerning the National Labor Relations Board, the Department of Labor, the Equal Employment Opportunity Commission, as well as international labor issues. Prior to joining the Chamber, Jim...

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