The “OFCCP Week in Review” is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment published every Monday. Here are this week’s developments:
Tuesday, May 17, 2016: New Overtime Rule Released by Wage and Hour Division of the US Department of Labor. As directed by President Obama, the Department of Labor issued a final Rule to update the overtime regulations which will provide millions more workers the eligibility for overtime pay. According to the Rule, anyone making less than $47,476/yr. (up from $23,660/yr.) will automatically qualify for overtime pay once they work over 40 hours a week. The Rule will automatically update the threshold every three years to ensure it remains at the 40th percentile of full-time salaries in the lowest income region of the country.
Expected solutions for the retail, restaurant, private sector industries, government offices and nonprofits, social service organizations and universities could be any of the following:
- Raise exempt salaries to $47,476/yr. to prevent the need for paying overtime wages once the employees work more than 40 hours a week,
- Retain current salaries and prohibit any overtime work,
- Lower salaries to allow for the additional wages earned by employees from necessary overtime wages.
The final Rule will become effective December 1, 2016. Information related to the new overtime requirements can be found on the DOL’s website.
Wednesday, May 18, 2016: Obama Administration Federal Executive Branch Agencies Publish Their Last Regulatory Agendas Before The Election Still Talking “Smack.” Here is the latest US DEPARTMENT OF LABOR REGULATORY AGENDA: NOTE: Click on the embedded link and scroll down to the 7th and 8th rows from the bottom to find OFCCP’s two entries. (You may find the Paid Sick Leave entry in the WHD section, about 5 rows above the OFCCP rows). Then scroll all the way to the right and click on the (blue color) RIN number to bring up OFCCP’s detailed report for the regulatory item of interest.
– OFCCP Sex Discrimination Final Rule: The prior projected publication date was November 2015, and then December 2015 and is now May 2016 (i.e. either this week or next).
– NOTE: While regulatory publication dates are aspirational, the continuing delay of this (non-controversial, at least as proposed) obviously troubled Rule is very unusual. Publication on May 18 of notice of a promised Final Rule later this month makes publication appear to indeed, finally, be imminent.
– OFCCP Construction Proposed Rule: The prior projected publication date was several dates over the last 3 years and is now August 2016.
– NOTE: Publication in this Administration is doubtful, although a determined and bitter behind-the-scenes struggle is occurring with the Obama OFCCP pressing hard to launch this last attack on the construction industry before it leaves office and Congressional leaders threatening serious budgetary ramifications if OFCCP persists. Powerful construction industry representatives have been very effective to date: publishing a construction Rule was the very FIRST regulatory initiative the Obama OFCCP wished to pursue and announced in 2009 (yes 2009).
– USDOL Paid Sick Leave: September 30, 2016. This is a first date setting.
– NOTE: Congressional leaders are working hard to stop this Rule. We predict The White House will press on despite strong Congressional resistance.
– FAR Council processing Fair Pay and Safe Work: The prior projected publication date was April 2016 and is now August 2016. USDOL and the FAR Council, respectively, on May 4, 2016 sent their final draft Rule and final draft “Guidance” to OMB for review. It usually takes OMB a minimum of 60 days to review agency final drafts and much longer as to complex or controversial Rules.
– NOTE: Defeat of this initiative is the US Chamber of Commerce’s number one legislative objective. Congressional opposition is stirring. See related WIR story below.
Wednesday, May 18, 2016: US. House of Representatives Proposes to Stifle the Fair Pay and Safe Workplaces Act as to DOD Contracts. With over 75% of Democrats voting “No,” the U.S. House of Representatives last Thursday voted to pass “The National Defense Authorization Act” (“NDAA”). The NDAA contains a “rider,“ among other things, which would, exempt all U.S. Department of Defense and National Nuclear Security Administration (NNSA) contracts from President Obama’s Fair Pay and Safe Workplaces Executive Order 13673 and any implementing regulations the federal government may pass into Final form. The NDAA now goes to “conference” with the U.S. Senate. If the Senate agrees with the House as to the Fair Pay rider, the bill would then go to President Obama and confront him with the difficult decision whether to veto the NDAA and deny the Pentagon its budget or whether to sign it with its several “poison pills.”
The full House’s action comes on the heels of the vote of the House Armed Services Committee on April 27, 2016 to approve a so-called “Fair Pay-related amendment” to H.R. 4909, the FY 2017 NDAA. The Committee’s amendment exempted the “acquisition, contracting, contract administration, source selection, [and] any other activities” of the Department of Defense (DOD) and National Nuclear Security Administration (NNSA) from Fair Pay and Safe Workplaces coverage.
THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.
Reminder: If you have specific OFCCP compliance questions and/or concerns or wish to offer suggestions about future topics for the OFCCP Week In Review, please contact your membership representative at 866-268-6206 (for DirectEmployers Association Members), or email Candee at firstname.lastname@example.org with your ideas.
John C. Fox, Esq. is President and Partner at Fox, Wang & Morgan P.C. where he represents companies and tries cases in state and federal courts throughout the United States. Mr. Fox has extensive trial experience, having spent more than 300 days in trial. Mr. Fox was also lead trial counsel in the first of the six wage-hour class actions known to have been tried in California and was lead trial counsel in what are believed to have been the two largest disability law suits in the United States. He is an across-the-board employment lawyer representing management nationwide. Full Bio »