TABLE OF CONTENTS

Department of Labor (DOL)
  • Overtime - 9/24/2019 Update
  • Association Health Plans
  • Persuader Rule - Rescinded 6/27/2018
National Labor Relations Board (NLRB)
  • Ambush, or "Quickie" Elections
  • Joint Employer
  • Micro Unit Organizing - September 2019 Update
  • Property Access by Organizers Ruling
  • Other NLRB Cases
Office of Federal Contract Compliance Programs (OFCCP)
  • February 2018 Audit Directive
  • Proposed Rule to Collect Summary Compensation Data 
  • Sick Leave
U.S. Equal Employment Opportunity Commission (EEOC)
  • Rule on Pay Data Collection Requirements
Occupational Safety & Health Administration (OSHA) 
  • Tracking of Workplace Injuries & Illnesses
  • Record keeping
  • General Industry Walking-Working Surfaces and Fall Protection Standards
  • FSMA Whistleblower Protections
  • OSHA and union representation of employees during inspections

Please Note: IFDA Legal Counsel Littler Mendelson, P.C. ("Littler") resources provide important insights for IFDA Distributor Members.


Department of Labor (DOL)

Overtime Rule
On September 24, 2019, the Department of Labor published its Final Rule to the white collar overtime exemptions which goes into effect on January 1, 2020. The final rule increases the minimum salary level for exemption to $684 per week, or $35,568 a year. The Department of Labor’s Wage and Hour Division opened an overtime information portal.
Littler Summar

Association Health Plans
On June 19, 2018 the Department of Labor issued a final rule expanding the availability of association health plans. In March, 2019 a federal judge blocked key provisions of the rule, saying they were part of an unlawful effort to bypass the Affordable Care Act. The judge vacated key provisions of the rule and sent the rest back to DOL for further consideration. In April, 2019 the government filed an appeal to the D.C. Circuit Court.
Littler Summary

Interpretation of “advice” as it pertains to the employer and labor relations consultant persuader requirements
On June 27, 2018, the Department of Labor announced that it had rescinded the Obama Administration’s March 2016 “persuader” rule.   The persuader rule changed federal disclosure rules to make it more difficult for employers to access legal counsel or other expert advice on labor and employee relations issues, interfering with an employer’s ability to engage in positive, good-faith employee communications about the pros and cons of unionization.  


National Labor Relations Board (NLRB)

NLRB Expedited Union Elections
The NLRB adopted a final rule amending its representation–case procedures to modernize and streamline the process for resolving representation disputes. The "quickie election" rule took effect on April 14, 2015.

On December 14, 2017 the NLRB issued a Request for Information regarding Representation Election Regulations. The Board asked for feedback as to whether the rule should be retained, modified or rescinded.  The comment period ended in April 2018. Littler Summary
 

Joint Employer
In February 2018, the NRLB vacated a decision overturning the Obama Administration's joint employer rule. The action comes in response to an NLRB Inspector General's report that concluded that Board Member William Emmanuel should have recused himself from the decision due to his previous ties with a law firm involved in a matter related to the case. As a result of the decision, the Obama Board's joint employer policy remains in effect. Under this policy, indirect control of working conditions could be sufficient to create a joint employer relationship. The NLRB asked a federal appeals court in Washington to reopen the case. Legislation to overturn this policy passed the House but has not seen action in the Senate. In May 2018, NLRB Chairman John Ring announced in a letter that the NLRB plans to initiate rulemaking on the joint employment standard as opposed to a case decision. In September 2018, the NLRB issues a proposed rule would return the standard to the direct and immediate control standard that was in place prior to the Board's Browning Ferris decision. 

Micro Unit Organizing
On Setmeber 9, 2019, the NLRB issued its decision in The Boeing Company, 368 NLRB No. 67 (2019), clarifying an earlier ruling and reinstating the traditional community of interest standard for bargaining unit determinations. Littler Summary

Property Access
In September, 2019, The NLRB issued a ruling that limits non-employee union representative access to private property. Under the new standard, employers may bar non-employee union representatives from company property so long as they bar other organizations with similar activities to those of the union.  Littler Summary

Other NLRB Cases

Employee & Non-Employee Access
Littler Summary of Purple Communications Decision, December, 2014
The NLRB ruled in Purple Communications that employees have the right to use an employer-provided email system for non-work-related messages including union communications during non-working time.

Office of Federal Contract Compliance Programs (OFCCP)

 The OFCCP Compliance Checks Webpage offers federal contractors a variety of resources that will assist in preparing for and responding to a compliance check review.

OFCCP Audit Directive
In February 2018,  The OFCCP announced a new directive providing that OFCCP will no longer issue final findings of a violation before first issuing a Predetermination Notice (PDN) and considering the contractor’s response.
Counsel Summary

Proposed Rule to Collect Summary Compensation Data from Contractors in New Equal Pay Report
In 2014 the OFCCP announced a Notice of Proposed Rulemaking requiring covered federal contractors and subcontractors with more than 100 employees to submit an annual Equal Pay Report on employee compensation. The NRPM was developed to enable OFCCP to direct its enforcement resources toward those federal contractors and subcontractors whose summary compensation data suggest potential pay violations. IFDA Comments

Sick Leave
The rule requires federal contractors provide covered employees with up to 7 days of paid sick leave annually. The rule affects only contracts solicited by the government beginning on Jan. 1, 2017.
Counsel summary 
Department of Labor Summary


U.S. Equal Employment Opportunity Commission (EEOC)

Pay Data Collection Requirements 
The Equal Employment Opportunity Commission (EEOC) will require covered employers to file expanded EEO-1 compensation data for both calendar years 2017 and 2018 by September 30, 2019. The EEOC and its contractor, NORC at the University of Chicago, updated the Component 2 website.   The new information sections include a sample form, an instruction booklet, a fact sheet and reference documents. Counsel summary is here.  In September 2019, the EEOC announced that it would not collect expanded employee compensation data, or Component 2 on its Form EEO-1 next year.  The requirement that employers submit detailed compensation data for calendar years 2017 and 2018 by September 30, 2019, remains unchanged. For calendar years 2019, 2020, and 2021, EEOC will seek approval to collect only workforce demographic information or Component 1 data.  Littler Summary


Occupational Safety & Health Administration (OSHA)

Tracking of Workplace Injuries & Illnesses
OSHA delayed the part of the reporting rule that would have required employers to electronically submit injury and illness information and enabled the agency to post the information on its website.  Currently, all employers covered by the rule are required to submit their 2017 300A Form electronically by July 1, 2018. In May 2018, OSHA submitted a proposed rule revising the Obama-era regulation,  Improve Tracking of Workplace Injuries and Illnesses.  This is the final internal review by the Office and Management and Budget before the proposal gets published in the next several months. It is anticipated that the proposed regulation will eliminate the requirement that large establishments, those with 250 or more employees, electronically submit  OSHA 300 Log and 301 Forms annually and only be required to submit the 300A Form on an annual basis. 

Recordkeeping Requirements Rule Rescinded
President Trump  signed a Congressional Review Act Resolution of Disapproval to overturn the Occupational Safety and Health Administration’s recordkeeping rule. Known as the Volks rule, the regulation allowed the agency to cite employers for recordkeeping violations for a period of up to five years. The rule was a direct violation of the statutory language of the Occupational Safety and Health (OSH) Act, which only allows citations for issues within a six-month time frame. Under the CRA, agencies will now be prohibited from promulgating a “substantially similar” rule.

General Industry Walking-Working Surfaces and Fall Protection Standards
OSHA updated its general industry Walking-Working Surfaces standards specific to slip, trip, and fall hazards. Effective January 17, 2017, the final rule includes revised and new provisions addressing fixed ladders; fall protection systems and criteria, including personal fall protection systems and their design and performance; as well as training on fall hazards and fall protection systems.

FSMA Whistleblower Interim Final Rule
FSMA contains provisions to protect employees at food firms from retaliation when they raise food safety issues with their employer or the government. Under the new rule, employees are protected from retaliatory action as long as they have a “reasonable belief” that the conduct violates the Food Drug and Cosmetic Act. They would not need to show that a violation actually occurred. The reasonable belief standard is more lenient than many previous whistleblower standards. 

Littler Summary
 

OSHA and union representation of employees during inspections OHSA is no longer insisting it has the right to invite union advocates to inspections of non-union worksites. The policy set in a 2013 interpretation letter from OSHA has been withdrawn and the guidance will be removed from OSHA’s manual on how staff should conduct inspections. 

Littler Summary