Trump Administration Releases Fall 2019 Regulatory Agenda
On November 20, the Trump Administration released its Fall 2019 Unified Regulatory Agenda and Regulatory Plan, providing the regulated public with a detailed glimpse into the regulatory policies and priorities under consideration by 59 federal departments, agencies and commissions. Agendas are released twice a year, generally in the spring and fall, and are designed to provide the public with information on regulations the federal government is currently considering and to prioritize action items for the coming year.
The Fall 2019 Agenda sets target dates for each agency and sub-agency’s regulatory actions, from the beginning to the end of the regulatory process, ranging from preliminary actions, such as Requests for Information (RFIs) and proposed rules, to final actions, such as final rules. While the target dates are estimations and are not often met, the agenda provides insight into which issues will be a short-term focus for the agency. It also includes long-term action items to allow relevant parties to begin considering the impact these regulations may have. Although the Agenda reports on thousands of rules and regulations, below are some of the more important issues that CUPA-HR has been following (a more detailed document for those looking ahead can be found here):
Department of Labor
Wage and Hour Division — Request for Information: The Family and Medical Leave Act of 1993
The Department of Labor (DOL) plans to issue an RFI to solicit comments on ways to improve its regulations under the FMLA to better protect and suit the needs of workers and reduce administrative and compliance burdens on employers. While the regulatory agenda listed November 2019 as the target date for issuance of this RFI, it still remains under review at the White House’s Office of Management and Budget (OMB), where it has remained since September 24. OMB is required to review all draft regulatory actions before they can be published, and the review period is typically between 30 and 60 days.
Wage and Hour Division — Joint Employment Under the FLSA
The DOL will issue a final rule revising and clarifying the responsibilities of employers and joint employers to employees in joint-employer arrangements. In April 2019, the DOL proposed a four-factor test that would consider whether the potential joint employer actually exercises the power to: (1) hire or fire the employee; (2) supervise and control the employee’s work schedule or conditions of employment; (3) determine the employee’s rate and method of pay; and (4) maintain the employee’s employment records. The final rule is targeted for December 2019 and was sent to OMB for final review on December 3, 2019.
Wage and Hour Division — Modernizing Section 3(m) Regulations
The Fair Labor Standards Act (FLSA) Section 3(m) defines wage to include “the reasonable cost to the employer of furnishing board, lodging or other facilities.” The Wage and Hour Division(WHD)’s regulations in 29 CFR part 531 interpret the meaning of this provision; however, aspects of these regulations do not provide adequate clarity and are outdated. The DOL proposed to update part 531 to provide greater clarity on the meaning of “other facilities” and better guidance for complying with the FLSA in the 21st-century workplace. The Notice of Proposed Rulemaking (NPRM) is targeted for publication in June 2020.
Department of Education
Office of Civil Rights — Title IX Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance
On November 29, 2018, Secretary of Education Betsy DeVos issued an NPRM to clarify and modify the obligations of recipients of federal financial assistance in redressing sex discrimination, including complaints of sexual misconduct, and the procedures by which they must do so. CUPA-HR submitted comments in response focusing on the aspects of the Department’s proposal that could impact how higher education HR professionals manage policies and claims involving employment discrimination. The agenda targeted November 2019 for issuance of a final rule; however, it is still under review at the OMB, and meetings to discuss the proposal from interested stakeholders are scheduled through January 2020.
Department of Homeland Security
USCIS — Removing H-4 Dependent Spouses From the Class of Aliens Eligible for Employment Authorization
The Department of Homeland Security (DHS) will issue an NPRM to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization. On February 25, 2015, the DHS published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. The DHS is publishing this NPRM to amend that 2015 final rule. The NPRM is targeted for March 2020.
ICE — Practical Training Reform
The DHS will issue an NPRM to improve protections of U.S. workers who may be negatively impacted by employment of nonimmigrant students on F and M visas. The rule is a comprehensive reform of practical training options intended to reduce fraud and abuse. The NPRM is targeted for August 2020.
Equal Employment Opportunity Commission
Joint-Employer Status Under the Federal Equal Employment Opportunity Statutes
The U.S. Equal Employment Opportunity Commission (EEOC) enforces federal employment discrimination laws. These amendments explain the EEOC’s interpretation of when an entity qualifies as a joint employer based on the definitions of the statutory terms “employee” and/or “employer” under the federal equal employment opportunity laws. The NPRM is targeted for December 2019.
EEOC’s Proposed Rules on Wellness Plans under the ADA and GINA
The EEOC will issue two NPRMs to address wellness programs under the Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA) in response to the U.S. District Court for the District of Columbia’s 2017 ruling that the EEOC reconsider its May 17, 2016, final rules on employer-sponsored wellness plans under the ADA and GINA. The agenda targets January 2020 for issuance of the NPRMS.
National Labor Relations Board
On September 23, the National Labor Relations Board (NLRB) issued a proposed rule that would exclude from the National Labor Relations Act (NLRA) undergraduate and graduate students at private colleges and universities who perform services in connection with their studies. CUPA-HR will be submitting comments in response to the proposal. The comment period has been extended twice, with comments now due on January 16.
The NLRB will issue a final rule to establish the standard for determining joint-employer status under the NLRA. In September 2018, the NLRB issued a proposed rule that clarified an employer may be found to be a joint employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. The final rule is targeted for December 2019.
The NLRB will issue an NPRM to establish the standards under the NLRA for access to an employer’s private property. This is a complicated subject area, and it is not clear what type of access the rule will deal with or if it will attempt to comprehensively address all of the various access questions. The NPRM is targeted for February 2020.