PUNCHING IN: Overtime, NLRB Insight


Monday morning musings for workplace watchers 

By Chris Opfer and Ben Penn


Buying Time on Overtime | Regulatory Wheels Turn Slow | NLRB Noms and Joint Employer Bill 

Chris Opfer: The Labor Department recently said it will unveil a request for information on the overtime rule by the end of July, and we expect to see it sometime this week. The Office of Management and Budget completed its review of the RFI last week. 

The department will ask for additional public comment on the stalled Obama-era proposal that was expected to make more than 4 million workers newly eligible for overtime. The DOL will probably also reveal at least some of its plans to tweak the rule, which was put on hold by a federal judge in Texas last year.

“They will probably propose a new rule with lower threshold and maybe get rid of automatic increases,” Proskauer partner Allan Bloom recently told me. “Maybe they will also provide some relief for small businesses.”

The DOL has made clear that it wants to continue using workers’ salary levels to help determine overtime eligibility. Although the Obama rule would have made anyone earning less than about $47,000 per year automatically eligible, Labor Secretary Alex Acosta has said he’s more comfortable setting the mark somewhere in the low $30k area. Currently, workers who make less than about $24,000 are automatically entitled to time-and-a-half pay for all hours worked beyond 40 a week.

It’s also likely that part of the Obama rule that would automatically increase the salary threshold every few years is on its way out. Forget the “set it and forget it” approach. The DOL, for the time being, will have to issue a new rule anytime it wants to update the salary threshold.

Regardless of how the department decides to approach the rule, it’s safe to say wage and hour lawyers will be logging plenty of hours themselves in the coming months. What else should we be keeping an eye on for the rest of the summer? Let us know at copfer@bna.com and bpenn@bna.com or on Twitter: @ChrisOpfer and @BenjaminPenn.

Ben Penn: Acosta calibrated his remarks to American Legislative Exchange Council members Friday by delivering an ardent anti-regulatory message. He told the conservative audience of state and local legislators that their voices will be needed as the administration “is looking to reconsider many rules in the coming years.” 

“Years” may be the operative word. If the newly released regulatory agenda is any indication, there are only a few DOL rulemaking rescissions planned for release in the next 12 months. The department Acosta oversees was largely silent when given the opportunity to place deregulatory actions in the queue. 

But let’s not overreact. This may just be the latest instance of Acosta living up to his reputation as a cautious attorney. Sure, the White House wants two rules cancelled for every new one advanced, but for a team of politicals that is short-staffed, we shouldn’t be surprised the Trump regulatory agenda didn’t slate many Obama rules for reversal—yet.  

About those new rules unveiled last week. Two that caught my eye both stemmed from the Office of Labor-Management Standards and would entail stricter reporting requirements on unions. The proposals – which DOL projects will come out next March – mark the return to George W. Bush administration OLMS priorities that we’ve been expecting. For instance, one of the rules would require “intermediate bodies,” such as public sector unions that are subordinates of national unions with private sector members, to begin filing annual reports detailing their financial activity. 

Supporters of rules to bolster union disclosures say they want to improve transparency so union members can see how their dues are spent. Call me a cynic, but I can’t help but observe that public sector unions reporting their financial spending would also give a GOP-run administration more intel on the political campaigning of unions such as SEIU and AFSCME. 

CO: Congress has its hands full this week with the ongoing health care debate and a possible Trump Jr.-Kushner-Manafort appearance on the hill. Still, we expect Senate leadership to try to at least get NLRB nominees Marvin Kaplan and Bill Emanuel confirmed before the August recess. The HELP Committee has already approved the two nominees and each is expected to get enough support to sail through floor votes.

Board watchers have been careful to caution that the new blood – Kaplan and Emanuel will give the NLRB its first Republican majority in nearly a decade – probably will not mean immediate changes to federal labor laws. Well, we have a little insight on one possible exception to that. One of the first issues the new board may be asked to tackle could be a big one. We will have more on that for subscribers later this week.

It wouldn’t be autumn on Capitol Hill if there wasn’t a government funding fight brewing. Although the House Appropriations Committee last week approved a Labor Department funding bill, a floor vote on the measure isn’t likely until September. “No - but depends on leadership,” committee spokeswoman Jennifer Hing told Bloomberg Law’s Tyrone Richardson last week when asked if she expected the House to vote on the legislation before the recess.

Hing also said the bill’s silence on that proposed OFCCP-EEOC merger doesn’t mean the proposal is off the table. There’s still a “long legislative process before this bill becomes law, with multiple opportunities for changes,” Hing said. 

BP: This could be the week the House finally introduces joint employer bill. As my colleagues Tyrone Richardson and Hassan Kanu reported a few weeks back, legislation to rewind the NLRB’s expanded definition of joint employment has been in the drafting phase and Republicans – and lobbyists – were hoping it would’ve already dropped by now. 

What to watch for: How bold will they go? Does the House Education and the Workforce Committee leadership land on language that extends the measure to the FLSA and OSHA, or are they content with sticking to the NLRA?  

Also be on the lookout for a HELP committee vote on the nomination of Patrick Pizzella for deputy labor secretary. Nothing has been scheduled yet, but the panel needs to advance Pizzella ASAP if they want to give DOL a chief operating officer before the August recess. 

Absent confirmed political leadership for half of 2017, one has to wonder whether there’s been a productivity dropoff. Thankfully, the Wage and Hour Division is still releasing informative quarterly enforcement data that help paint a picture. I’m in the midst of taking a deep dive into those numbers, and the initial results are eye opening. Stay tuned.  

We’re punching out. Daily Labor Report subscribers can check in with us during the week for updates. Make sure your firm is represented in the second annual Bloomberg Law Labor & Employment Practice Benchmarks Survey. Survey closes August 15th, so start now: Click here to begin.

See you back here next Monday morning.

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