OFCCP Week in Review: July 31, 2017

Key questions from the RFI, summarized below, include the following which suggest the Department is willing to think very broadly about both differential salary tests for exemption and also having no salary test at all for certain exemptions or under only certain circumstances:

• What methodology should DOL use to set a new threshold?
• Should the reg contain multiple salary levels (separated by industry, region, etc.)?
• Should the reg contain different salary levels for different exemptions (i.e. administrative, professional, executive)?
• At what salary level does the duties test no longer fulfill its historical role in determining exempt status?
• Did you make changes for the Dec. 1, 2017, effective date and, if so, have you reversed course?
• Should DOL do away with the minimum threshold concept altogether?
• Should the standard salary level and the highly compensated employee total annual compensation level be automatically updated on a periodic basis?

Employers have until Sept. 25, 2017 to provide input on these questions. Tell DOL what you think!

• The bill, titled the “Save Local Business Act,” would amend the National Labor Relations Act and Fair Labor Standards Act to state an employer can only be deemed a joint employer if it exercises “significant control” over an employee. Bill sponsors claim the law would bring back “clarity” and more neatly outline an employer’s responsibility over its employees.
• The bill defines the terms of employment that would indicate significant control, including hiring and firing decisions, pay rate determination, day-to-day supervision, assigning individual schedules and tasks and administering employee discipline

The DOL recently took back its joint employer AI (Administrator’s Interpretation) and the groundbreaking Browning-Ferris joint-employer case the Obama Administration championed to create an expansive definition of joint-employment (bad for employers) is under judicial review, with a ruling expected any day now–just as the NLRB nears its new Republican majority.

More broadly, employers are unlikely to get much more clarification on various wage and hour issues until a WHD administrator is fully in place. That process could extend into 2018.