Tag: DOL

  • DOL to Host Webinar on the PUMP for Nursing Mothers Act – CUPA-HR

    DOL to Host Webinar on the PUMP for Nursing Mothers Act – CUPA-HR

    by CUPA-HR | March 8, 2023

    On March 16, the Department of Labor’s Wage and Hour Division (WHD) will present a webinar titled “The PUMP for Nursing Mothers Act: What Advocates and Employers Need to Know.” The free webinar is intended to provide resources and tools to assist employees who wish to continue breastfeeding after returning to work and to help employers understand their responsibilities under the law.

    In December 2022, the PUMP for Nursing Mothers Act was enacted into law through the Consolidated Appropriations Act of 2023. The bill amends the Fair Labor Standards Act (FLSA) to expand access to breastfeeding accommodations in the workplace for lactating employees and builds on existing protections in the 2010 Break Time for Nursing Mothers Provision by broadening breastfeeding accommodations and workplace protections. In the new law, protections are expanded to include salaried employees exempt from overtime pay requirements under the FLSA as well as other categories of employees currently exempt from such protections, such as teachers, nurses and farmworkers. It also clarifies that break time provided under this bill is considered compensable hours worked so long as the worker is not completely relieved of duty during such breaks, and it ensures remedies for nursing mothers for employer violations of the bill.

    Following the passage of the Act, on February 9, WHD issued Field Assistance Bulletin No. 2023-1, “Telework Under the Fair Labor Standards Act and Family and Medical Leave Act.” This bulletin provides guidance for WHD field staff on how to apply protections under the FLSA that provide reasonable break time for nursing employees to express milk while teleworking, among other clarifications. The bulletin explicitly refers to the passage of the PUMP for Nursing Mothers Act and its expanded coverage to more employees, and it may be discussed during the upcoming webinar.

    The webinar will be held on Thursday, March 16 at 2:00 p.m. ET. The webinar is free to the public, and participants can register to attend online. CUPA-HR’s government relations team will attend the webinar and keep members apprised of any significant updates related to the PUMP for Nursing Mothers Act.

     



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  • President Biden Nominates Deputy Secretary Julie Su to Head the DOL – CUPA-HR

    President Biden Nominates Deputy Secretary Julie Su to Head the DOL – CUPA-HR

    by CUPA-HR | February 28, 2023

    On February 28, President Biden announced he would nominate Julie Su to lead the Department of Labor (DOL). Su is currently the deputy secretary of labor under Marty Walsh, who announced he would leave the agency mid-March to head the National Hockey League Players’ Association.

    Given previous opposition during her nomination to become deputy secretary, Su will likely face a difficult nomination process. In 2021, Su was confirmed into her current position by a 50-47 vote with no Republican support. Republican criticism during her nomination process arose from her prior role as secretary of the California Labor and Workforce Development Agency. During her tenure in California, the agency handled oversight and enforcement of the state-passed bill, Assembly Bill 5 — a controversial law regarding independent contractor status and misclassification. Additionally, the agency oversaw COVID-19 pandemic relief and dealt with subsequent issues, including unemployment insurance fraud.

    President Biden said in his statement “It is my honor to nominate Julie Su to be our country’s next secretary of labor. Julie has spent her life fighting to make sure that everyone has a fair shot, that no community is overlooked and that no worker is left behind. Over several decades, Julie has led the largest state labor department in the nation, cracked down on wage theft, fought to protect trafficked workers, increased the minimum wage, created good-paying, high-quality jobs, and established and enforced workplace safety standards.”

    Su is backed by many Democrats and Asian American members of Congress as well as several labor unions, including the Service Employees International Union.

    Regardless of how her nomination goes, Su is in line to become the acting secretary of labor once Walsh leaves office. There are no limitations on what an acting secretary can do leading the agency, leaving Su with full authority over the DOL while her nomination is pending. Regulations anticipated in the near future, including the Wage and Hour Division’s overtime exemption rulemaking, will likely not be delayed as a result of this nomination.

    CUPA-HR will keep members apprised of major updates at the Department of Labor and any significant guidance or regulations released by the agency.



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  • DOL Wage and Hour Division Publishes First Opinion Letter Under Biden Administration, Regarding FMLA Leave – CUPA-HR

    DOL Wage and Hour Division Publishes First Opinion Letter Under Biden Administration, Regarding FMLA Leave – CUPA-HR

    by CUPA-HR | February 21, 2023

    On February 9, the Department of Labor’s Wage and Hour Division (WHD) issued an opinion letter stating that employees with chronic serious health conditions may use Family and Medical Leave Act (FMLA) leave to reduce work hours indefinitely. The WHD opinion letters serve as a means by which the public can develop a clearer understanding of what FMLA compliance entails. This particular letter is the first issued by the Biden administration.

    The letter from the WHD and Acting Administrator Jessica Looman comes in response to an employer’s letter asking whether “an employee may use FMLA leave to limit their work schedule for an indefinite period of time if the employee has a chronic serious health condition and a healthcare provider certifies that the employee has a medical need to limit their schedule.” The question only applies to employees who are regularly scheduled to work more than eight hours per day.

    The opinion letter specifies that if an employee is regularly scheduled to work more than eight hours per day but has an FMLA-qualifying condition that grants them to take FMLA leave, then the employee is entitled to use the 12 weeks of FMLA leave to reduce their work hours to eight hours per day. It adds that an employee may indefinitely reduce their work hours so long as they don’t surpass the 12 weeks of FMLA leave in a 12-month period that they are entitled to under the law.

    The letter also addresses concerns from the employer that the need for a work day limited to eight hours may be “better suited” as a reasonable accommodation granted under the Americans with Disabilities Act (ADA). The letter states that the requirements and protections of the FMLA and ADA are separate and distinct, and that employees may be entitled to use protections granted under both laws at the same time. It further states that an employee who has exhausted all of the afforded FMLA leave for a 12-month period may have additional rights granted under the ADA to continue to work at the reduced level, but it clarifies that the WHD does not “interpret or provide any advice for” the ADA and its requirements.

    Finally, the letter states that employees are entitled to the equivalent of 12 standard workweeks of FMLA leave, which may be more than 480 hours (equivalent to working 40 hours per week for 12 weeks) if the regular schedule of the employee is greater than 40 hours per week. The letter uses an example of an employee regularly working 50 hours per week, in which case the employee would be entitled to 600 hours of FMLA leave.

    It’s worth noting that the content of the letter is consistent with long-standing guidance and enforcement of the FMLA. The letter may draw increased attention to the issue, however, since the letter is the first provided by the Biden administration’s WHD.

    CUPA-HR will continue to monitor for any future WHD opinion letters and will keep members apprised of any significant updates in the future.



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  • DOL Targets October 2022 for Release of a New Overtime Proposal – CUPA-HR

    DOL Targets October 2022 for Release of a New Overtime Proposal – CUPA-HR

    by CUPA-HR | June 29, 2022

    On June 21, the Biden administration released the anticipated Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions (Regulatory Agenda), providing the public with a detailed glimpse into the regulatory and deregulatory activities under development across approximately 67 federal departments, agencies and commissions. Agendas are generally released in the fall and spring and set target dates for each agency and sub-agency’s regulatory actions for the coming year.

    Based on a thorough review of the Regulatory Agenda, CUPA-HR would like to highlight the following proposed actions for members, including an updated target date for the release of a new overtime proposal.

    Department of Labor

    Wage and Hour Division – Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees

    According to the Regulatory Agenda, the Department of Labor (DOL)’s Wage and Hour Division (WHD) is now planning to release a Notice of Proposed Rulemaking (NPRM) to address changes to the Fair Labor Standards Act (FLSA)’s overtime pay requirements in October 2022. In the Fall 2021 Regulatory Agenda, WHD announced their intention to move forward with the NPRM with the goal “to update the salary level requirement of the section 13(a)(1) exemption [under the FLSA].”

    Changes to overtime pay requirements have been implemented through regulations under both the Obama and Trump administrations. In May 2016, the Obama administration’s DOL issued a final rule increasing the salary threshold from $23,660 to $47,476 per year and imposed automatic updates to the threshold every three years. However, court challenges prevented the rule from taking effect and it was permanently enjoined in September 2017. After the Trump administration started the rulemaking process anew, in September 2019, DOL issued a new final rule raising the minimum salary level required for exemption from $23,660 annually to $35,568 annually. This final rule went into effect January 1, 2020, and it remains in effect today.

    From April through June 2022, DOL held several listening sessions for interested stakeholders to discuss any support or concerns they may have with the anticipated rulemaking. CUPA-HR participated in all of the calls, expressing our concerns with the timing of the rulemaking as it relates to the ongoing challenges of the COVID-19 pandemic, a historically tight labor market, and increasing inflation.

    Employment and Training Administration – Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States

    In October 2022, DOL’s Employment and Training Administration (ETA) plans to issue an NPRM to establish “a new wage methodology for setting prevailing wage levels for H-1B/H-1B1/E-3 and PERM programs consistent with the requirements of the Immigration and Nationality Act.” The proposal will likely amend the Trump administration’s final rule that was scheduled to take effect on November 14, 2022, but was subsequently vacated by a federal court in June 2021. The new proposal, which is included in the Department’s Statement of Regulatory Priorities, will take into consideration the feedback it received in response to a Request for Information (RFI) on data and methods for determining prevailing wage levels “to ensure fair wages and strengthen protections for foreign and U.S. workers.”

    CUPA-HR filed comments in opposition to the Trump administration’s regulations on the issue and in response to the Biden administration’s RFI.

    National Labor Relations Board

    Joint Employer

    In July 2022, the National Labor Relations Board (NLRB) is planning to release an NPRM to potentially amend the standard determining when two employers may be considered joint employers under the National Labor Relations Act. The new standard will revise the 2020 Trump Administration’s final rule, which reversed the Obama-era NLRB decision in the 2015 Browning-Ferris Industries case and established that an entity can only be a joint employer if it actually exercises control over the essential terms and conditions of another employer’s employees. While details of the Democratic-majority NLRB’s NPRM on joint employer status are unknown, we would expect them to revise the current standard to reflect the Obama-era decision.

    Department of Homeland Security

    USCIS – Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program

    In May 2023, the Department of Homeland Security (DHS)’s United States Citizenship and Immigration Services (USCIS) plans to release an NPRM to “amend its regulations governing H-1B specialty occupation workers and F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions.” The NPRM will specifically propose to “revise the regulations relating to ‘employer-employee relationship’ and provide flexibility for start-up entrepreneurs; implement new requirements and guidelines for site visits including in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data; provide flexibility on the employment start date listed on the petition (in limited circumstances); address ‘cap-gap’ issues; bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system; and clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions.”

    ICE – Optional Alternative to the Physical Examination Associated With Employment Eligibility Verification (Form I-9)

    According to the Regulatory Agenda, DHS plans to issue an NPRM in July 2022 to “revise employment eligibility verification regulations to allow the Secretary to authorize alternative document examination procedures in certain circumstances or with respect to certain employers.”

    DHS has provided temporary flexibility in the Form I-9 verification process since the beginning of the COVID-19 pandemic. Specifically, the flexibility guidance allows for remote inspection of Form I-9 documents in situations where employees work exclusively in a remote setting due to COVID-19-related precautions. While that guidance is only temporary, DHS issued a Request for Public Input (RPI) on October 26, 2021, to determine whether those flexibilities should be kept in place permanently. It is possible that DHS will use that feedback to develop and implement this NPRM.

    CUPA-HR has engaged with DHS on the Form I-9 flexibilities through the pandemic. Most recently, DHS announced an additional extension of the Form I-9 flexibility guidance through October 31, 2022. CUPA-HR sent a letter to USCIS Director Ur M. Jaddou asking for this additional extension. Additionally, CUPA-HR submitted comments in response to the RPI based on a recent survey detailing members’ experiences with the Form I-9 verification process flexibilities.

    On June 7, ICE sent its proposal to the Office of Information and Regulatory Affairs (OIRA). OIRA is the White House office responsible for reviewing regulations and proposed regulations before they are publicly released and generally takes 30-90 days for this review, indicating ICE is on target to issue their proposal in July.

    Department of Agriculture

    Agriculture Acquisition Regulation: Internal Policy and Procedural Updates and Technical Changes

    In December 2022, the Department of Agriculture (USDA) plans to re-propose an NPRM that was previously issued in February 2022 and included controversial provisions that would require federal contractors on projects procured by the agency to certify their compliance with dozens of federal and state labor laws and executive orders.

    In the February NPRM, USDA provided only 32 days for stakeholder comment submissions on the proposal. CUPA-HR filed an extension request with the department asking for an additional 90 days to “evaluate the NPRM’s impact on [members’] research missions and collect the information needed in order to provide thoughtful and accurate input to the USDA,” as well as official comments that were pulled from 2012 comments CUPA-HR submitted with the Society for Human Resource Management (SHRM).

    While it is unclear whether the December NPRM will include the blacklisting language again, the abstract of the re-proposal states that “the new proposed rule would be responsive to the comments received on our February 2022 proposal.”

     



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  • DOL Secretary Testifies in House and Senate Committee Hearings – CUPA-HR

    DOL Secretary Testifies in House and Senate Committee Hearings – CUPA-HR

    by CUPA-HR | June 22, 2022

    On June 14 and 15, the House Education and Labor Committee and Senate Appropriations Committee’s Subcommittee on Labor, Health and Human Services, Education, and Related Agencies held hearings on policies and priorities of the U.S. Department of Labor (DOL), as well as President Biden’s Fiscal Year 2023 Budget Request for DOL. In both hearings, Secretary of Labor Marty Walsh testified and answered questions about DOL’s regulations and actions, as well as potential future funding for programs under DOL.

    In both hearings, Walsh pointed to the accomplishments DOL has achieved during the Biden administration. He discussed efforts to increase the minimum wage for federal contractors to $15 and to protect workers’ organizing rights as some of the highlights of the department’s work during the Biden administration thus far. In addition to these accomplishments, he also called for increased funding and investments for workforce training and development.

    During the House committee hearing, Walsh was asked several questions about the anticipated overtime regulations. Rep. Mark Takano (D-CA) began his question period by restating his request for DOL to increase the minimum salary threshold to $82,732 by 2026, and asked Walsh his opinion on the current level and whether it was too high or low. Walsh responded saying he had no opinion on where the current level stands at this time, but that the department recently concluded listening sessions to hear from stakeholders about their opinions on updating the salary threshold. Additionally, Takano asked Walsh if there was a timeline of when the anticipated Notice of Proposed Rulemaking (NPRM) would be released for the overtime regulations, but Walsh responded that there was no set timeline at the time of the hearing.

    Many representatives and senators also discussed DOL’s workforce development and training programs. In the Senate hearing, Walsh explained that the current disconnect between youth and job openings is an opportunity for DOL to reach out and connect with those workers, better preparing them for the jobs available. Walsh also expressed his support for a wide range of apprenticeships in different, untraditional industries, and he stated DOL should partner with community colleges, existing workforce development programs, and other organizations to expand apprenticeships.

    CUPA-HR will keep members apprised of any developments that arise as a result of these hearings.



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  • CUPA-HR Participates in DOL Overtime Regional Listening Sessions – CUPA-HR

    CUPA-HR Participates in DOL Overtime Regional Listening Sessions – CUPA-HR

    by CUPA-HR | June 14, 2022

    In May and June, CUPA-HR participated in five regional listening sessions hosted by the Department of Labor (DOL) on the anticipated Notice of Proposed Rulemaking (NPRM) to update the criteria for the “executive, administrative and professional” exemptions for overtime pay under the Fair Labor Standards Act (FLSA). The listening sessions provided regional employers the opportunity to discuss their support or concerns with changes to the minimum salary level required to be exempt from overtime payments under the FLSA.

    CUPA-HR joined each of the five sessions to express concerns with the timing of the proposed increase to the minimum salary threshold to qualify for exempt status under the FLSA. Specifically, we raised concerns with the timing of such changes, as they would come while institutions, employees and students are still grappling with the challenges of the COVID-19 pandemic, a tight labor market and historically high inflation. Additionally, several CUPA-HR members joined the calls to raise similar concerns and discuss issues more specific to their individual institutions.

    Though many in higher ed and other industries are expressing similar concerns about raising the overtime minimum salary threshold level at this time, labor unions and worker advocates have led efforts to both raise the minimum salary threshold and expand coverage of overtime regulations to workers currently not covered under the FLSA. Notably, the National Education Association sent a letter to DOL urging the agency to remove the teacher exemption that currently exempts teachers from the FLSA requirements to receive overtime payments regardless of how much they are paid.

    The overtime NPRM that was targeted for release in April 2022 is now expected to come anytime within the next couple of months, though more information on when it will be released may be included in the anticipated Spring 2022 Regulatory Agenda. CUPA-HR will continue to monitor for the NPRM and will keep members apprised of any updates to the overtime regulations.



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  • DOL to Host Regional Listening Sessions for Proposed Overtime Rule Regulations – CUPA-HR

    DOL to Host Regional Listening Sessions for Proposed Overtime Rule Regulations – CUPA-HR

    by CUPA-HR | April 7, 2022

    In the Biden administration’s fall 2021 regulatory agenda, the Department of Labor (DOL)’s Wage and Hour Division (WHD) announced that it planned to release in April 2022 a Notice of Proposed Rulemaking (NPRM) changing criteria for the “executive, administrative and professional” exemptions from the overtime pay requirements under the Fair Labor Standards Act (FLSA). In May and June, the DOL will host five regional listening sessions allowing stakeholders to discuss the anticipated proposed rule aimed at changing the exemptions to the federal overtime pay requirements.

    With listening sessions extending into May, the WHD will not be able to meet the April target date, but we do expect the agency will release a proposed rule in 2022 with compliance likely required in 2023. While the DOL has not shared how it may change the exemptions, it is holding listening sessions to elicit stakeholder input as to whether changes are appropriate and what changes would be appropriate at this time.

    Background

    According to the regulatory agenda, one of the goals of the NPRM would be “to update the salary level requirement of the section 13(a)(1) exemption [under the FLSA].” Changes to the overtime exemption minimum salary threshold have been proposed recently under both the Obama and Trump administrations. In 2016, President Obama’s DOL issued a final rule to increase the salary threshold from $23,660 to $47,476 per year and impose automatic updates to the threshold every three years, but the rule was subsequently struck down by federal court before taking effect in 2017. In 2019, the Trump administration issued a new final rule that raised the minimum salary threshold from $23,660 to $35,568 annually, which went into effect on January 1, 2020. The $35,568 threshold remains in effect today.

    On March 29, in anticipation of the upcoming Biden administration rule, the DOL held a virtual higher education-specific listening session for D.C.-based higher education associations, including CUPA-HR. The listening session was scheduled after CUPA-HR and 14 other higher education associations submitted a request that the DOL hold such meetings prior to releasing the anticipated NPRM. CUPA-HR and several other higher education associations joined the session to discuss potential concerns institutions may have with an increase to the minimum salary threshold at this time.

    Regional Sessions

    In addition to the D.C. meeting held in March, the DOL is planning to host five additional regional listening sessions for employers. The sessions include the following:

    • Northeast Employers: May 13 at 3:30 p.m. EDT
    • Southeast Employers: May 17 at 2:00 p.m. EDT
    • Midwest Employers: May 20 at 3:30 p.m. EDT
    • Southwest Employers: May 27 at 3:00 p.m. EDT
    • West Employers: June 3 at 3:30 p.m. EDT

    If your institution is interested in participating in any of the regional meetings, please reach out to CUPA-HR’s Chief Government Relation Officer Josh Ulman at [email protected]. Additional information about the D.C. listening session and CUPA-HR’s talking points will be provided upon inquiry.



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  • CUPA-HR Submits Letter to DOL Requesting Stakeholder Meetings Prior to Anticipated Overtime Proposed Rule – CUPA-HR

    CUPA-HR Submits Letter to DOL Requesting Stakeholder Meetings Prior to Anticipated Overtime Proposed Rule – CUPA-HR

    by CUPA-HR | February 8, 2022

    On February 8, CUPA-HR and 14 higher education organizations sent a letter to the Department of Labor (DOL) Wage and Hour Division (WHD)’s Acting Administrator Jessica Looman requesting that the agency engage in stakeholder meetings with the higher education community during the initial stages of the rulemaking process for the anticipated overtime rule.

    In December 2021, the DOL announced in its Fall Regulatory Agenda that it plans to issue a Notice of Proposed Rulemaking (NPRM) this April to update the salary level to qualify for the executive, administrative and professional employee exemptions (collectively known as “white collar” or “EAP” exemptions) to the Fair Labor Standard Act’s overtime pay requirements. In 2015, the Obama administration’s DOL proposed an increase to the threshold of over 100 percent from $23,660 to $50,440 per year. After the comment period ended, the DOL issued a final rule in 2016 that would have increased the level to $47,476. The rule was stayed and then overturned by a federal court in 2017; however the Trump administration DOL reevaluated the rule in light of the litigation and issued a new rule in 2019 that increased the salary threshold starting January 1, 2020, to $35,568 per year.

    While the DOL has not publicly stated the salary threshold increase it is considering for the April NPRM, members of Congress and advocates have recommended that the Biden administration DOL increase the threshold by over 100 percent to at least to $82,732 by 2026.

    Given the likelihood that the DOL is feeling significant pressure from certain stakeholders to pursue a robust increase, CUPA-HR drafted the letter highlighting higher education’s significant involvement with DOL’s prior rulemakings in 2016 and 2019 and the particular concerns institutions harbored with the 100 percent increase to the salary threshold in 2016. It further explains that due to the pandemic-related workforce changes across colleges and universities, the DOL must hold stakeholder meetings with our community before issuing the anticipated overtime NPRM — as was done in 2004, 2014 to 2015, and 2019.

    CUPA-HR will keep members apprised of any actions taken by the DOL as it moves forward with the overtime rule.



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  • DOL Issues Final Rule to Increase Federal Contractor Minimum Wage – CUPA-HR

    DOL Issues Final Rule to Increase Federal Contractor Minimum Wage – CUPA-HR

    by CUPA-HR | December 13, 2021

    On November 24, the Department of Labor (DOL)’s Wage and Hour Division (WHD) issued a final rule implementing President Biden’s Executive Order 14026 (EO), “Increasing the Minimum Wage for Federal Contractors.” The rule increases the minimum wage for federal government contractors for workers who work on or in connection with a covered federal contract to $15 per hour beginning January 30, 2022, and requires the secretary of labor to annually review and determine the minimum wage amount beginning January 1, 2023.

    As stated above, the final rule establishes standards and procedures for implementing and enforcing the minimum wage protections of Executive Order 14026. Starting January 30, 2022, all agencies will need to include a $15 minimum wage in new contracts, new solicitations, extensions or renewals of an existing contract, and exercises of an option on an existing contract. Under the EO and final rule, contracts with solicitations issued before January 30, 2022, and entered into, on or between January 30 and March 30, 2022 will be exempt from the wage. If such a contract is subsequently extended or renewed or an option is exercised under the contract, the $15 minimum wage will apply.

    Covered Contracts

    According to the EO and as finalized in the rule, the $15 minimum wage requirement only applies to the following contracts:

    • Procurement contracts for services or construction;
    • Contracts for services covered by the Service Contract Act (SCA);
    • Contracts for concessions; and
    • Contracts “entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.”

    The new minimum wage clause will NOT need to be included in:

    • Federal grants;
    • Contracts or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act;
    • Procurement contracts for construction that are excluded from coverage of the Davis-Bacon Act (DBA);
    • Contracts for services that are exempt from coverage under the SCA; and
    • Contracts for the manufacturing of materials, supplies, articles or equipment to the Federal Government.

    Covered Workers

    The WHD defines a covered worker in the final rule as “any person engaged in performing work on or in connection with a contract covered by the EO, and whose wages under such contract are governed by the [Fair Labor Standards Act (FLSA)], the SCA or the DBA, regardless of the contractual relationship alleged to exist between the individual and the employer.” A worker who performs “on” a covered contract is defined as “any worker who directly performs the specific services called for by the contract’s terms,” and a worker who performs “in connection with” a covered contract is defined as “any worker who performs work activities that, although are not the specific services called for by the contract’s terms, are necessary to the performance of those specific services.”

    One exemption to the rule’s minimum wage requirement is provided for FLSA-covered workers performing work “in connection with” covered contracts for less than 20 percent of their working hours in a given workweek.

    The final rule also clarifies that certain employees who are exempt from the minimum wage protections under the FLSA are also not entitled to the $15 minimum wage protection of the EO and final rule. In an FAQ page on the EO and final rule, the WHD provides “learners, apprentices, messengers and full-time students employed under certificates pursuant to FLSA sections 14(a) and (b)” as examples of individuals who are excluded from the EO’s minimum wage requirements.

    Additional Considerations

    As mentioned above, the secretary of labor will be granted authority to annually review and increase the minimum wage beginning January 1, 2023. The minimum wage will be increased by the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers to address inflation.

    Additionally, the EO and final rule change compensation for tipped employees working on or in connection with a covered contract. Beginning January 30, 2022, such tipped employees must be paid a wage of at least $10.50 per hour. By January 1, 2024, the tip credit must be eliminated for such employees, and they must earn the same minimum hourly rate that other covered employees are entitled to.

    CUPA-HR will keep members apprised of any updates and resources to aid institutions as the new minimum wage final rule becomes effective.



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