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United States Department of Labor Announces Regulatory Agenda

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United States Department of Labor Announces Regulatory Agenda

Last week, the Trump administration released the Fall 2018 Regulatory Agenda describing the intended regulatory activity among the various departments or agencies within the Federal Government. While the announcement itself does not provide any guidance (or even very many hints) regarding the potential content of the regulations proposed, they nonetheless are sufficient to put employers on alert of likely upcoming changes.

The U.S. Department of Labor's Wage and Hour Administration announced several items in its regulatory agenda that are of interest. First, the Wage and Hour Administration indicated that it will be issuing new proposed overtime regulations, presumably to replace the enjoined and abandoned "FairPay" regulations that were to have gone into effect at the end of the Obama administration. While these regulations are projected to be issued in March 2019, in the past, Wage and Hour promised the same regulations would be issued in October 2018, then in January 2019. Still, hope remains that the regulations will be issued for comment soon, so that they can be finally resolved before another change in administration potentially occurs. Wage and Hour also announced that it intends to issue a proposed regulation clarifying, updating, and defining the regular rate of pay used to calculate overtime compensation sometime in December 2018. That proposed regulation promises to address several outdated regulatory schemes that are no longer effective in the modern economy. Finally, Wage and Hour also announced that it intends to propose a regulation in December 2018 clarifying the meaning of a joint employer relationship under the FLSA which, once again, promises to modernize the FLSA's method for determining modern employment to address the realities of today’s workplace.

The Occupational Safety and Health Administration announced its intent to issue a number of regulations as well, including a new standard for prevention of workplace violence in healthcare and social assistance settings (to be issued in March 2019) and a final regulation changing the method of maintaining workplace injury and illness logs. These changes, which include eliminating the requirement that the logs be submitted to OSHA, are projected to be issued in June 2019. OSHA also has indicated that it intends to request information from the public regarding updating the lock-out tag-out standard to reflect modern computer-based technologies for the control of hazardous energy.

Finally, the National Labor Relations Board has issued proposed regulations redefining joint employers in the context of the National Labor Relations Act that would restore the standard for joint employment in place before the Board's Browning Ferris decision. Comment on those regulations is set to close in November of 2018, and final regulations are likely to be issued shortly thereafter. The NLRB has also pushed possible revisions to the "ambush" election regulations onto the "long-term action" list, meaning that no further action is expected on those regulations for the next 12 months.

2019 promises to be a busy year as changes in Department of Labor regulations are proposed and finalized.  As these proposals come to fruition, we will issue additional notifications to keep you informed of recommended policy and procedure changes that should be made in order to comply with these new rules.

If you have any questions about the information in this post, please contact James Hermon (jhermon@dykema.com or 313-568-6540) or your Dykema relationship attorney.