Tag: Regulatory

  • Fall 2022 Regulatory Agenda Targets Release Dates for DOL’s Overtime Proposal and Final Title IX Rule – CUPA-HR

    Fall 2022 Regulatory Agenda Targets Release Dates for DOL’s Overtime Proposal and Final Title IX Rule – CUPA-HR

    by CUPA-HR | January 10, 2023

    On January 4, 2023, the Biden administration released the anticipated Fall 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.

    After completing a thorough review of the items included in the Regulatory Agenda, CUPA-HR put together the following list of significant proposed actions for members.

    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 May 2023. The WHD first announced their intention to move forward with the NPRM in the Fall 2021 Regulatory Agenda, stating its goal “to update the salary level requirement of the section 13(a)(1) exemption [under the FLSA].”

    As a refresher, 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, the DOL issued a new final rule in September 2019 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 remains in effect today.

    Since the regulation’s reintroduction in the Fall 2021 Regulatory Agenda, CUPA-HR has participated in several DOL listening sessions and has sent letters to the DOL expressing concerns with the timing of the rulemaking. Specifically, our concerns highlight the ongoing challenges of the COVID-19 pandemic and the continued reliance on hybrid and remote work, a historically tight labor market in the U.S. and the effects of inflation on the workforce.

    Wage and Hour Division — Employee or Independent Contractor Classification Under the Fair Labor Standards Act

    In May 2023, the WHD anticipates issuing a final rule to amend the current method for determining independent contractor status for workers.

    On October 13, 2022, the DOL published an NPRM to rescind the current method for determining independent contractor status under the FLSA. The current test finalized by the Trump administration in 2021 has two core factors of control and investment with three additional factors (integration, skill and permanency) that are relevant only if those core factors are in disagreement. The Biden rule proposes a return to a “totality-of-the-circumstances analysis” of multiple factors in an economic reality test, including the following six factors, which are equally weighted with no core provisions:

    • the extent to which the work is integral to the employer’s business;
    • the worker’s opportunity for profit or loss depending on managerial skill;
    • the investments made by the worker and the employer;
    • the worker’s use of skill and initiative;
    • the permanency of the work relationship; and
    • the degree of control exercised or retained by the employer control.

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

    In September 2023, the 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 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 August 2023, the National Labor Relations Board (NLRB) plans to release its anticipated final rule to amend “the standard for determining whether two employers, as defined under the National Labor Relations Act (NLRA), are a joint employer under the NLRA.”

    On September 7, 2022, the NLRB issued an NPRM on the joint employer standard. The NPRM establishes joint employer status of two or more employers if they “share or co-determine those matters governing employees’ essential terms and conditions of employment,” such as wages, benefits and other compensation, work and scheduling, hiring and discharge, discipline, workplace health and safety, supervision and assignment and work rules. According to the NLRB’s press release, the Board “proposes to consider both direct evidence of control and evidence of reserved and/or indirect control over these essential terms and conditions of employment when analyzing joint-employer status.”

    Department of Education

    Office for Civil Rights — Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance 

    In May 2023, the Department of Education’s Office for Civil Rights (OCR) plans to release its highly anticipated Title IX final rule. The rulemaking would finalize the June 2022 NPRM to rollback and replace the Trump administration’s 2020 regulations, specifically with respect to its grievance procedures, while simultaneously expanding protections against sex-based discrimination to cover sexual orientation, gender identity and pregnancy or related conditions.

    CUPA-HR filed comments in September 2022 in response to the NPRM. In our comments, we tried to bring attention to the possible impact the proposed regulations could have on how higher education institutions address employment discrimination. The Department of Education received over 200,000 comments in response to the NPRM, which they must review prior to issuing a final rule to implement their changes.

    In addition to the Title IX rulemaking, the OCR also announced its intention to issue an NPRM to address Title IX protections as it relates to athletics programs at educational institutions. The Department of Education announced its intention to pursue a separate rulemaking to address transgender students participation in athletic programs at institutions of higher education and such protections afforded to them under Title IX after the topic was frequently discussed in the media and in Congress in 2022. According to the Regulatory Agenda, the NPRM was set to be released in December 2022, but it has not yet been released.

    Department of Homeland Security

    U.S. Immigration and Customs Enforcement — Optional Alternative to the Physical Examination Associated With Employment Eligibility Verification (Form I-9) 

    According to the Regulatory Agenda, the Department of Homeland Security (DHS) plans to issue a final rule in May 2023 that would finalize the agency’s proposed rule aiming 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.”

    On August 18, 2022, the DHS published its NPRM on optional alternative examination practices for employers when reviewing an individual’s identity and employment authorization documents required by the Form I-9, Employment Eligibility Verification. If finalized, the proposed rulemaking would create a framework under which the Secretary of Homeland Security could allow alternative options for verifying those documents, such as reviewing the documents via video, fax, or email rather than directly allowing employers and agents to use such alternative examination options. According to the NPRM, the Secretary would be authorized to implement the alternative examination options in a pilot program if they determine such procedures would offer an equivalent level of security, as a temporary measure to address a public health emergency declared by the Secretary of Health and Human Services, or a national emergency declared by the President.

    CUPA-HR filed comments in response to the DHS NPRM in October 2022. The comments were supportive of the Department moving forward with the NPRM, but cautioned against requiring secondary, in-person review of I-9 documents after virtual inspection and once an employee is in-person on a regular and consistent basis; issuing training for document detection and/or anti-discrimination training that may be offered at a high cost without proper vetting, and requiring institutions to be enrolled in E-Verify to participate in the alternative options.

    U.S. Citizenship and Immigration Services — Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program

    In October 2023, the 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.”

    Department of Agriculture

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

    In May 2023, 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, the 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 May 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.”



    Source link

  • August Recess Roundup: Congressional and Regulatory Updates – CUPA-HR

    August Recess Roundup: Congressional and Regulatory Updates – CUPA-HR

    by CUPA-HR | August 22, 2022

    When August arrives, Congress leaves D.C. and heads to their home districts for the annual August recess period. To keep CUPA-HR members apprised of recent and future actions on the Hill and in federal agencies, here are highlights of the latest actions by Congress, nominations they’ll have to consider when they return, and regulations that may be issued throughout the month.

    Legislative Updates

    On August 16, President Biden signed the Inflation Reduction Act into law following its passage, along partisan lines, in both the U.S. Senate and House of Representatives. The Inflation Reduction Act, which is a slimmed down version of the reconciliation bill Democrats have been pushing for, focuses on policies to mitigate the impacts of climate change, reduce healthcare costs and increase tax revenue to reduce the federal budget deficit. This reconciliation bill was narrowed down from the “Build Back Better” agenda, a step necessary to gain support from Senators Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) to get the bill over the 50-vote threshold. Notably, the final package did not include “Build Back Better” provisions like paid leave, universal community college and childcare.

    Additionally, on August 9, President Biden signed the CHIPS and Science Act, which provided new funding to boost U.S. investments in research and manufacturing of semiconductors. With respect to the research investments, the bill includes a five-year, $81 billion authorization of the National Science Foundation to go toward research funding. Additionally, the bill provides new funding to historically black colleges and universities and other minority-serving institutions, and for STEM programs at colleges and universities.

    Nominations Awaiting Confirmation

    On July 27, President Biden announced Jessica Looman as the new nominee for the Department of Labor (DOL)’s Wage and Hour Division Administrator. Looman has been serving as acting administrator for the agency since June 2021. Her nomination replaces Biden’s previously withdrawn nomination of David Weil, who failed to garner enough support in the Senate to be confirmed. Looman’s nomination will have to go through the Senate Health, Education, Labor and Pensions (HELP) Committee prior to going to the Senate floor for a full vote. Timing on both votes are uncertain at this point.

    Additionally, Kalpana Kotagal’s nomination for the Equal Employment Opportunity Commission (EEOC) continues to be held up in the Senate. In May, the Senate HELP Committee deadlocked on a vote to move her nomination to the full Senate, which means the full Senate will have to vote to advance her nomination out of committee — a logistical hurdle in a 50-50 Senate with sparse time on their legislative calendar. The result of this hold up means the EEOC will continue to operate with a Republican majority as federal statute allows Republican Commissioner Janet Dhillon, whose term expired in July, to remain an active member of the EEOC while her successor’s nomination is pending. If and when nominee Kotagal is confirmed, she will replace Commissioner Dhillon and tip control of the EEOC to a 3-2 Democratic majority. Her confirmation vote is also uncertain at this point.

    Regulatory Updates

    Though not guaranteed, there may be several proposals and final regulations that may be released by the Department of Education, the DOL and other relevant agencies throughout the month. Some of these include the expected proposed rule on Form I-9 remote verification flexibilities from the Department of Homeland Security, which has already had its review completed by the White House; a proposed rule on independent contractor classification, which was sent to the White House for review in July; and a final rule on the Deferred Action for Childhood Arrivals program, which has a target release date set for August.

    In addition to these proposed and final rules CUPA-HR is waiting to be released, the Department of Education is still undergoing its notice-and-comment period for the Title IX proposed rule that was released in June. CUPA-HR is assessing the proposal and will put together comments in response to the proposed rule. Comments are due September 12.

    CUPA-HR will keep members apprised of legislative and regulatory actions as August recess continues and we move into the fall.



    Source link

  • Biden Administration Releases Fall 2021 Regulatory Agenda – CUPA-HR

    Biden Administration Releases Fall 2021 Regulatory Agenda – CUPA-HR

    by CUPA-HR | January 10, 2022

    On December 10, the Biden administration issued the Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions (Regulatory Agenda), providing the public with insights on what various federal agencies expect to work on in terms of regulatory activity in the near- and long-term.

    In an effort to keep members apprised of upcoming noteworthy regulatory actions, CUPA-HR has read through the Regulatory Agenda and has flagged the following proposed activity:

    Department of Labor

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

    In April 2022, the Department of Labor (DOL)’s Wage and Hour Division plans to issue a Notice of Proposed Rulemaking (NPRM) addressing overtime pay requirements for certain “white-collar” employees, including executive, administrative, and professional employees, currently exempt from the requirements under the Fair Labor Standards Act (FLSA). 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 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.

    DOL’s Statement of Regulatory Priorities, a component of the fall Regulatory Agenda that presents additional information about the most significant regulatory activities planned for the coming year, states that this proposed update will “ensure that middle class jobs pay middle class wages, extending important overtime pay protections to millions of workers and raising their pay.”  Given this statement, it is likely that we will see the Biden administration’s DOL attempt to increase the salary level in the NPRM to something closer to the Obama administration’s proposed level, if not higher.

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

    In March 2022, DOL’s Employment and Training Administration (ETA) plans to issue a 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.

    Occupational Safety and Health Administration — Improve Tracking of Workplace Injuries and Illnesses

    According to the Regulatory Agenda, the Biden administration’s Occupational Safety and Health Administration (OSHA) plans to release a NPRM to restore provisions of the May 2016 “Improve Tracking of Workplace Injuries and Illnesses” final rule. The Regulatory Agenda set December 2021 as the target date for release, but as of early January, the regulation is still pending review at the Office of Information and Regulatory Affairs.

    The proposal seeks “to amend [OSHA’s] recordkeeping regulation to restore the requirement to electronically submit to OSHA information from the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for establishments that meet certain size and industry criteria.” In the Regulatory Agenda, OSHA notes that the current regulations only require electronic submissions from the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses), as the Trump administration’s 2019 final rule rescinded the requirements to electronically submit the OSHA Form 300 and OSHA Form 301.

    National Labor Relations Board

    Joint Employer

    In February 2022, the National Labor Relations Board (NLRB) is planning to release a 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 up in the air, we would expect them to revise the current standard to look something more like the Obama-era decision.

    Department of Education

    Office for Civil Rights — Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance

    In April 2022, the Department of Education is planning to release a NPRM to amend the “regulations implementing Title IX (…) consistent with the priorities of the Biden-Harris administration,” such as the priorities set forth in Executive Order (EO) 13988, “Preventing and Combating Discrimination on the Basis of Gender Identity and Sexual Orientation” and EO 14021, “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation and Gender Identity.” This NPRM will revise the amendments the Trump administration made through the 2020 Title IX final rule.

    The Department of Education highlighted this new rulemaking in their Statement of Regulatory Priorities. The addition of the rulemaking to the priorities document and the accelerated expected release date of April 2022 from May 2022 as stated in the Spring 2021 Regulatory Agenda indicate that the agency is likely considering this as one of the top regulatory priorities above other proposed actions.

    Department of Homeland Security

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

    According to the Regulatory Agenda, the Department of Homeland Security (DHS)’s United States Citizenship and Immigration Services (USCIS) plans to release a NPRM in May 2022 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 is planning to issue a NPRM in June 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.”

    Since the outset of the COVID-19 pandemic, DHS has provided temporary flexibility in the Form I-9 verification process to allow 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. In December, CUPA-HR sent a letter to DHS requesting the Form I-9 flexibilities be extended past December 31, 2021. DHS announced soon after that the flexibilities would be extended until April 30, 2022. 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.

    CUPA-HR will keep members apprised of these proposed regulations and others as they are introduced in the coming year.



    Source link