Key Labor, Employment, and Immigration, Regulatory Initiatives in the Obama Administration. Table of Contents

Transcription

1 Key Labor, Employment, and Immigration, Regulatory Initiatives in the Obama Administration The following is a summary of key regulatory actions, completed, underway, or anticipated, in which the Chamber has been, or plans on being, actively engaged. Table of Contents Key Labor, Employment, and Immigration, Regulatory Initiatives in the Obama Administration... 1 Labor and Employment Related Regulatory Activity... 6 Executive Orders... 6 Establishing a Minimum Wage for Contractors... 6 Non-Retaliation for Disclosure of Compensation Information... 6 Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government and Executive Order 11246, Equal Employment Opportunity... 7 Fair Pay and Safe Workplaces Executive Order... 8 Executive Order Establishing Paid Sick Leave for Federal Contractors Presidential Memoranda Updating and Modernizing Overtime Regulations Achieving Pay Equality Through Compensation Data Collection Completed Rulemakings Representation-Case Procedures (Ambush Elections-Part I) Representation-Case Procedures (Ambush Elections II) November 10, 2016 Page 1

2 Family and Medical Leave Act, as Amended Systemic Compensation Discrimination Under Executive Order and Voluntary Guidelines for Self-Evaluation Revising Companionship Exemption to the Fair Labor Standards Act OSHA Recordkeeping Update from SIC codes to NAICS codes; reporting of hospitalizations and amputations OFCCP Scheduling Letter and Itemized Listing FAR Regulation: Ending Trafficking in Persons Employer and Consultant Reporting Under the LMRDA s Persuader Regulations OSHA Revised Silica Standard OSHA Injury and Illness Reporting Regulation Workplace Wellness Programs and Employment Discrimination Sex Discrimination Guidelines for Federal Contractors EEOC s Changes to the EEO1-Form Rulemakings Underway Adding New Column to Track Ergonomic Injuries Under OSHA Injury Logs Genetic Information Nondiscrimination Title I Regulation of Health Risk Assessments. 33 Compensation Data Collection Tool Treasury Department Acquisition Regulations Proposed Contracting Language for Minority and Women Inclusion under Dodd-Frank Act Worker Classification Survey Chemical Management and Permissible Exposure Limits Clarification of Employer s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness (Volks) Department of Labor Inflation Adjustment Act Catch-Up Adjustments for Penalties Anticipated Rulemakings Hours Worked Under the Fair Labor Standards Act Revocation of Obsolete Permissible Exposure Limits (PELs) Significant Non-Regulatory Activities Department of Labor Proposed Interpretation of Feasible Under OSHA s Noise Exposure Standard OSHA Memo on Whistleblowers and Employer Safety Incentive Programs November 10, 2016 Page 2

3 OSHA Letter of Interpretation Permitting Union Representatives to Accompany an OSHA Inspector at Non-Union Workplaces Changes to Strategic Partnership Programs informaction App Challenge (WHD and OSHA) Persuader Reporting Orientation Program (OLMS) U-VISA Determinations (WHD) Memorandum of Understanding for Employee Misclassification Initiative (WHD) Aggressive Strategic Plans (OFCCP) Guidance on the Applicability of the Worker Adjustment and Retraining Notification Act to layoffs that may occur among Federal Contractors, including in the Defense Industry as a Result of Sequestration (ETA) Complying with Nondiscrimination Provisions: Criminal Record Restrictions (OFCCP) OFCCP Procedures for Reviewing Contractor Compensation Systems and Practices (OFCCP) Calculating Back Pay as Part of Make-Whole Relief for Victims of Employment Discrimination (OFCCP) Agricultural Workers (WHD) Memo on Implementation of the President s Executive Order on Fair Pay and Safe Workplaces Administrator s Interpretation No , Independent Contractor Status (WHD) Administrator s Interpretation No , Joint Employment under the Fair Labor Standards Act and Migrant and Seasonal Agricultural Worker Protection Act (WHD) Form LM-21 Special Enforcement Policy (OLMS) Mega Construction Project Program (OFCCP) Equal Employment Opportunity Commission Credit and Criminal History Background Checks Religious Garb and Grooming in the Workplace Enforcement Guidance on Pregnancy and Related Issues American with Disabilities Act Enforcement Proposed Enforcement Guidance on Retaliation and Related Issues Addendum to the Revised Memorandum of Understanding between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites Proposed Enforcement Guidance on National Origin Discrimination November 10, 2016 Page 3

4 National Labor Relations Board Protected Concerted Activity Website Memorandum of Understanding with Justice Department Letter of Agreement Between The Office of General Counsel and the Ministry of Foreign Affairs of Mexico Addendum to the Revised Memorandum of Understanding between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites Immigration Regulatory Activity Completed Rulemakings H-2B Program Rule and Wage Methodology I-9 Employment Eligibility Verification Automation of Form I-94 Arrival/Departure Record H-4 Spousal Work Authorization Updating Immigration Procedures for Consistency in E-3, H-1B1, CW-1, and EB-1 Processing Reinstate and Expand the STEM Optional Practical Training Extension U.S. Citizenship and Immigration Services Fee Schedule Rulemakings Underway Labor Condition Application (ETA 9035) for H-1B Petitions Asia-Pacific Economic Cooperation (APEC) Business Travel Card Notice of Request For Information E-Verify Final Non Confirmation Review Process and New Reverification Obligation (USCIS) Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting Highly-Skilled H-1B Alien Workers (USCIS) Department of Homeland Security and Department of Labor Federal Civil Penalties Inflation Adjustment Act Catch-Up Adjustments for the H-2B Temporary Non-Agricultural Worker Program Standards and Procedures for the Enforcement of the Immigration and Nationality Act Significant Public Benefit Parole for Entrepreneurs (USCIS) Anticipated Rulemakings Procedural and Technical Employment Verification (I-9) Violations (ICE) November 10, 2016 Page 4

5 Nonimmigrant Classes: Temporary Visitors to the United States for Business or Pleasure (CBP) Implementation of Amendments Affecting Petitions for Employment Creation for Aliens (USCIS) Improvement of the Employment-Creation (EB-5) Immigration Regulations (USCIS) Department of Labor- Labor Certification for Permanent Employment of Foreign Workers in the United States; Revising Schedule A Labor Department PERM Modernization Efforts Significant Non-Regulatory Activities Department of Homeland Security L-1B Adjudication Policy (USCIS) H-1B Adjudication Policy (USCIS) November 10, 2016 Page 5

6 Labor and Employment Related Regulatory Activity Executive Orders Establishing a Minimum Wage for Contractors On February 12, 2014, President Obama signed an Executive Order, entitled Establishing a Minimum Wage for Contractors that raises the wages paid by federal contractors with service and construction contracts to $10.10 per hour. The Executive Order also applies to subcontractors of federal contractors and companies with concession agreements on federal properties or leasing space in federal buildings. The E.O. also specified that workers who are merely supporting the covered contracting activity would be covered. The new minimum wage requirements will be effective January 1, 2015, for new and renewed contracts and the minimum wage will be increased each year by an inflation based adjustment. On June 17, 2014, the Department of Labor promulgated the proposed rule to implement the requirements of the Executive Order. On July 28, 2014, the Chamber submitted comments, which may be accessed here: On October 7, 2014, the Department of Labor issued final regulations. The rules became effective beginning December 5, Among other things, the final regulations create a new notice posting requirement; impose two additional recordkeeping requirements for contractors (the requirement to maintain records reflecting each worker s occupation (s) or classification (s) and the requirement to maintain records reflecting total wages paid); and provides an exemption for workers performing in connection with covered contracts for less than 20 percent of their work hours in a given workweek as long as the contractor segregates the hours worked in connection with the covered contract from other work not subject to the Executive Order for that worker. However, none of the problems in the proposed regulation, with respect to coverage of vendors on federal property or which employees must be included, were cured. Non-Retaliation for Disclosure of Compensation Information On April 8, 2014, President Obama signed an Executive Order, entitled Non-Retaliation for Disclosure of Compensation Information which amends Executive Order to provide that federal contractors shall not discriminate against employees or applicants that share compensation data. Specifically, the Executive Order states that: "The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not November 10, 2016 Page 6

7 otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information." The Executive Order provides that the Secretary of Labor shall issue regulations within 160 days to implement the requirements of the Order. On September 17, 2014, DOL issued the proposed implementing regulations for the Executive Order. The proposal would apply to covered federal supply and service contracts and federally assisted construction contracts worth more than $10,000 and entered into or modified on or after the effective date of a final rule. The regulations provide that contractors must incorporate the new nondiscrimination requirement into their employee manuals or handbooks, as well as disseminate it to employees and applicants either through electronic or physical postings. The proposal establishes two defenses that contractors may use against allegations of pay secrecy violations one based on legitimate workplace rules and the other based on the essential functions of an employee's job. On December 16, 2014, the Chamber submitted comments, which may be accessed here: On September 11, 2015, the DOL promulgated final regulations. On September 30, 2016, the FAR Council promulgated interim regulations to amend the FAR to implement the E.O. Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government and Executive Order 11246, Equal Employment Opportunity On July 21, 2014, President Obama signed an Executive Order, entitled Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government and Executive Order 11246, Equal Employment Opportunity, which amends Executive Order to provide that federal contractors cannot discriminate on the basis of sex, sexual orientation, gender identity, or national origin. The Executive Order provides that the Secretary of Labor shall issue regulations within 90 days to implement the requirements of the Order. The Order will take effect pursuant to a timeframe set in regulations by the Department of Labor. On December 9, 2014, the OFCCP published the final rule. The rule requires contractors to update the equal opportunity clause included in new or modified subcontracts or purchase orders, to ensure that applicants and employees are treated without regard to their sexual orientation and gender identity, and to update the equal opportunity language used in job solicitations and workplace notices. The rule became effective on April 8, November 10, 2016 Page 7

8 On December 9, 2014, the OFCCP also published an information collection request with respect to the final rule. The information request seeks comments that covered federal contractors will need to modify language in the equal opportunity clause used in their subcontracts and purchase orders; modify the tag line language used in job advertisements and other employment solicitations; and report to the State Department and the OFCCP when employees or applicants are denied a visa or entry to a country in which or with which it is doing business if it believes the denial is due to sex, race, color, national origin, sexual orientation or gender identity. Comments were due by February 6, Fair Pay and Safe Workplaces Executive Order On July 30, 2014, President Obama signed Executive Order 13673, entitled Fair Pay and Safe Workplaces. The E.O. will govern new federal procurement contracts valued at more than $500,000, and mandate that companies provide information to the federal government if there has been any administrative merits determination; arbitral awards or decision or civil judgment, as defined in guidance issued by the Department of Labor with respect to labor law violations that are severe, repeated, willful, or pervasive, and that have occurred within the prior three years and to be updated every 6 months. The labor laws that are covered include: the Fair Labor Standards Act; the Occupational Safety and Health Act; the Migrant and Seasonal Agricultural Worker Protection Act; the National Labor Relations Act; the Davis-Bacon Act; the Service Contract Act; EO 11,246 on equal employment opportunity; Section 503 of the Rehabilitation Act; the Vietnam Era Veterans' Readjustment Assistance Act; the Family and Medical Leave Act; Title VII of the 1964 Civil Rights Act; the Americans with Disabilities Act; the Age Discrimination in Employment Act; EO on increasing the minimum wage for contractors' employees; and equivalent state laws as defined by the DOL. This reporting requirement will flow down to any subcontractor level with a contract of $500,000 or more. Subcontractors must report their violations to the next level up contractor. The E.O. directs the General Services Administration to develop a single website for contractors to meet reporting requirements. Under the terms of the E.O., labor law violations will be reviewed by a Labor Compliance Advisor (LCA) in each designated agency in consultation with the Department of Labor. The LCA is directed to provide instructions to contracting officers as part of the responsibility determination in determining whether such violations are serious, repeated, willful, or November 10, 2016 Page 8

9 pervasive. A contracting officer, prior to making an award is required as part of the responsibility determination to provide an offeror the opportunity to disclose any steps taken to correct the violations or improve compliance with the labor laws, including any agreements entered into with an enforcement agency. The E.O. states that, subject to the determination of the agency in most cases a single violation of the law may not necessarily give rise to a determination of a lack of responsibility, depending on the nature of the violation. It also instructs contracting officers and contractors (as they make responsibility determinations of subcontractors) to ensure appropriate consideration is given to any remedial measures or mitigating factors, including any agreements by contractors or other corrective action taken to address violations. In addition, the E.O. restricts federal contractors of $1 million or more from requiring their employees to enter into predispute arbitration agreements for disputes arising out of Title VII of the Civil Rights Act or from torts related to sexual assault or harassment. Furthermore, contractors will be required to give their employees information concerning their hours worked, overtime hours pay, and any additions to or deductions made from their pay. The E.O. provides that the FAR Council shall issue regulations to implement the requirements of the Order and the Secretary of Labor shall issue guidance explaining how the various levels of violations will be applied to the different laws, as well as explaining the different state equivalent laws that may apply. On May 28, 2015, the Federal Acquisition Regulation (FAR) Council promulgated proposed regulations to amend the FAR to implement the Fair Pay and Safe Workplaces Executive Order. These regulations among other things: describe the role of Labor Compliance Advisors as supporting contracting officers and contractors in making responsibility determinations before making an award and addressing violations that occur during contract performance; prescribes the process by which contractors would be held responsible for flow-down for their subcontractor s performance; requires contractors to update their disclosure of labor violations semi-annually; and describes the elements of the wage statement and how it should be administered. The regulations also request comment on alternatives such as using a phase-in approach for subcontractor disclosure requirements and revising the flow-down process to permit subcontractors to directly report violations to the Department of Labor, which would then assess such violations. On August 26, 2015, the Chamber submitted comments, which may be accessed here: Also, on May 28, 2015, the Department of Labor issued proposed guidance to administer the Fair Pay and Safe Workplaces E.O. This proposed guidance will assist Labor Compliance Advisors in evaluating and comparing "administrative merits determinations, arbitral awards or decisions, and civil judgments" to determine whether such findings reflect "serious, repeated, willful, or pervasive violations" of labor and employment laws. Proposed definitions are as follows: Administrative merits determination -identifies seven categories of documents, notices, and findings from the Wage and Hour Division, Occupational Safety and Health Administration, November 10, 2016 Page 9

10 Office of Federal Contract Compliance Programs, Equal Employment Opportunity Commission and National Labor Relations Board- these notices can be final or subject to appeal or further review; essentially they represent the initial step in an enforcement procedure. civil judgment - judgment or order that is not final or is subject to appeal. arbitral award or decision - any award or order by an arbitrator or arbitral panel, which determined that the contractor or subcontractor violated any provisions of the Labor Laws, or enjoined or restrained the contractor or subcontractor from violating any provisions of the Labor Laws. Arbitral award - an award or order that is not final or is subject to being confirmed, modified, or vacated by a court. Arbitral Award or decision -includes an arbitral award or decision regardless of whether it is issued by one arbitrator or a panel of arbitrators and even if the arbitral proceedings were private or confidential. Also includes an arbitral award or decision finding that a contractor or subcontractor violated any of the Labor Laws even if the award or decision is subject to further review in the same proceeding, is not final, or is subject to being confirmed, modified, or vacated by a court. The proposed guidance also defines the terms: serious, willful, repeated, and pervasive as follows: Serious Involves at least one of the following: o an OSH Act or OSHA approved State Plan citation designated as serious, a notice of failure to abate an OSH Act violation, or an imminent danger issued under the OSH Act or an OSHA-approved State plan; o the affected workers comprised 25% of more of the workforce at the worksite; o fines and penalties of at least $5,000 were assessed or back wages of at least $10,000 were due or injunctive relief was imposed by an enforcement agency or a court; o the contractor or subcontractor s conduct violated MSPA or the child labor provisions of the FLSA and caused or contributed to the death or serious injury of one or more workers; employment of a minor who was too young to be legally employed or in violation of a Hazardous Occupations Order; o the contractor or subcontractor engaged in an adverse employment action (including discharge, refusal to hire, suspension, demotion, or threat) or is responsible for unlawful harassment against one or more workers for exercising any rights protected by any of the Labor Laws; o the findings of the relevant enforcement agency, court, arbitrator or arbitral panel support a conclusion that the contractor or subcontractor engaged in a pattern or practice of discrimination or systemic discrimination; o the findings of the relevant enforcement agency, court, arbitrator or arbitral panel support a conclusion that the contractor or subcontractor interfered with the enforcement agency s investigation; or o the contractor or subcontractor breached the material terms of any agreement or settlement entered into with an enforcement agency, or violated any court order, any administrative order by an enforcement agency, or any arbitral award. November 10, 2016 Page 10

11 Willful - o For purposes of a citation issued pursuant to the Occupational Safety and Health (OSH) Act or an OSHA- approved State Plan, the citation at issue was designated as willful or any equivalent State-designation (i.e., knowing ), and the designation was not subsequently vacated; o For purposes of the Fair Labor Standards (including the Equal Pay Act), the administrative merits determination sought or assessed back wages for greater than two years or sought or assessed civil monetary penalties for a willful violation, or there was a civil judgment or arbitral award or decision finding the contractor or subcontractor liable for back wages for greater than two years or affirming the assessment of civil monetary penalties for a willful violation; o For purposes of the Age Discrimination in Employment Act (ADEA), the enforcement agency, court, arbitrator, or arbitral panel assessed or awarded liquidated damages; o For purposes of Title VII or the Americans with Disabilities Act, the enforcement agency, court, arbitrator, or arbitral panel assessed or awarded punitive damages for a violation where the contractor or subcontractor enaged in a discriminatory practice with malice or reckless indifference to the federally protected rights of an aggrieved individual; or o For purposes of any of the other Labor Laws, the findings of the relevant enforcement agency, court, arbitrator, or arbitral panel supports a conclusion that the contractor or subcontractor knew that its conduct was prohibited by any of the Labor Laws or showed reckless disregard for, or acted with plain indifference to, whether its conduct was prohibited by one or more requirements of the Labor Laws. Repeated - The violation is the same as or substantially similar to one or more other violations of the Labor Laws by the contractor or subcontractor. Substantially similar does not mean identical, rather, the term means where essential elements are shared in common. The same or substantially similar other violations must be reflected in one or more civil judgments, arbitral awards or decisions, or adjudicated or uncontested administrative merits determinations issued within the last three years, and must be the subject of one or more separate investigations or proceedings. Pervasive - Is basic disregard by the contractor or subcontractor for the Labor Laws as demonstrated by a pattern of serious or willful violations, continuing violations, or numerous violations. According to the Guidance, the test for all of the designated terms will be considered on a caseby-case basis using the totality of the circumstances standard. The Guidance also spells out how contracting officers should evaluate violation of the Labor Laws, including mitigating circumstances. The Department has announced that at a future date the agency will publish a second proposed guidance addressing which State laws are equivalent to the 14 federal labor laws and executive orders identified in the Order accompanying another FAR regulations. November 10, 2016 Page 11

12 On August 26, 2015, the Chamber submitted comments, which may be accessed here: On August 23, 2016, President Obama signed an amendment to Executive Order 13673, to clarify reporting requirements for subcontractors. On August 25, 2016, the Federal Acquisition Regulation (FAR) Council issued final regulations to amend the FAR to implement the Fair Pay and Safe Workplaces Executive Order, and the Department of Labor issued final guidance to administer the Fair Pay and Safe Workplaces E.O. There were very few changes made between the proposal and the final regulations and guidance, and none that make this more acceptable. The most significant change is how subcontractors will be required to report their violations. Under the proposal, they would have had to report their violations of the 14 different labor laws and E.O.s to their higher tier contractor who would make the determination of whether the subcontractor had sufficient responsibility and integrity to be a federal contractor. Under the final regulations and guidance, subcontractors will now report their violations to the Department of Labor who will make the determination of responsibility and integrity and report back to the subcontractor who will then inform the relevant higher tier contractor. While this change is significant, it leaves many questions unanswered and essentially replaces one unworkable approach for another. Chief among the questions is how will DOL process the thousands of subcontractor reports it will receive? The guidance does not specify what office in DOL will handle this, nor what level of resources will be devoted to this process. While removing the responsibility determination from prime/upper tier contractors may be a positive, the bottleneck and uncertainty expected to ensue from DOL handling this process could result in substantial delays, as well as more contests and challenges to unfavorable determinations. Because this approach to subcontractor reporting differed from the E.O., an amendment to the original E.O. was issued as well. Another change made is that the final FAR rule requires that prospective contractors will publicly disclose whether they have violations of covered laws within the reporting period and, for prospective contractors being evaluated for responsibility, certain basic information about those violations. Contractors with violations will also have the opportunity to voluntarily provide to the government additional information, such as mitigating circumstances, remedial measures, and other steps taken to achieve compliance with workplace protections. This additional information will only be made public if the contractor chooses to do so. In addition, members of the public will be able to contact Agency Labor Compliance Advisors with information regarding administrative merits determinations, civil judgments, or arbitral awards they feel should have been disclosed about contractors' labor violations (mere allegations will not be considered.) Contact information for all ALCAs will be made available on the Department of Labor's website. One clarification that was made is that contracting officers will be allowed to award a contract to a contractor who has reported violations if that contractor commits to reaching an agreement with the relevant agency in future. This will mean that that agency (i.e. OSHA, Wage and Hour November 10, 2016 Page 12

13 Division, NLRB, EEOC, etc.) will have direct involvement in whether that contract action can move forward. The Procurement Act (under which this Executive Order was issued) never contemplated such involvement from regulatory agencies in the procurement process. Among the provisions that were not changed were the following: Definition of administrative merits determinations does not allow for adjudications; Prohibition on pre-dispute arbitration clauses for contracts of at least $1 million; Creation of Labor Compliance Advisors to assist contracting officers in evaluating contractor labor and employment law compliance; Definitions of severity levels: serious, repeated, willful, and pervasive that are not part of statutes; and Required reporting of violations every 6 months during life of the contract. The administration also announced a phased-in schedule for implementing the new requirements: The FAR regulations implementing the FPSW Order will be effective on October 25, Key Phase-In Dates: o September 12, 2016: Preassessment begins, through which current or prospective contractors may come to DOL for a voluntary assessment of their labor compliance history, independent of a specific government contract. o October 25, 2016: The FAR rule takes effect. Mandatory disclosure of labor compliance history begins for all prime contractors (only) under consideration for contracts with a total contract value greater than or equal to $50 million. The general rule under the Order is that contractors and subcontractors must disclose decisions regarding labor violations that were rendered against them within the 3-year period preceding the date of the disclosure. This 3-year disclosure period will be phased in during the first years of implementing the Order, so that no contractor or subcontractor need disclose any decisions regarding labor violations that were rendered against them before October 25, The reporting disclosure period is initially limited to one (1) year and will gradually increase to three (3) years by October 25, 2018 note, the exact schedule for this phase-in has not been provided. o October 25, 2016: Companies with federal contracts of $1 million or more are prohibited from requiring their workers to enter into pre-dispute arbitration agreements for disputes arising out of Title VII of the Civil Rights Act, or from torts related to sexual assault or harassment, except where valid contracts already exist and remain unmodified. o January 1, 2017: The paycheck transparency clause takes effect, requiring contractors to provide wage statements and notice of any independent contractor relationship to their covered workers. November 10, 2016 Page 13

14 o April 25, 2017: The total contract value above which prime contractors must make disclosures is reduced to $500,000. o October 25, 2017: Mandatory disclosure begins for all subcontractors under consideration for covered subcontracts with a total contract value greater than or equal to $500,000. On October 24, 2016, the U.S. District Court for the Eastern District of Texas enjoined the FAR rule and DOL guidance from taking effect, issuing a preliminary injunction with respect to the reporting requirements and banning of mandatory pre-dispute arbitration agreements while preserving the paycheck transparency requirement. Executive Order Establishing Paid Sick Leave for Federal Contractors On September 7, 2015, President Obama signed an Executive Order, entitled Establishing Paid Sick Leave for Federal Contractors. The Executive Order provides for no less than 1 hour of paid sick leave for every hour worked, up to 56 hours per year, and applies to contracts, contract-like instruments, and solicitations. The Executive Order also applies to any subcontractor of the prime contractor. The E.O. also specified that the mandate will flow down to lower-tier subcontracts. The Executive Order is wide-ranging and covers procurement contracts for services of construction; contract or contract-like instrument for services covered by the Service Contract Act; contract or contract-like instrument for concessions; and contract or contract-like instrument 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 Executive Order permits leave to be used for physical or mental illness, injury, or medical condition; obtaining diagnosis, care, or preventive care from a health care provider; caring for a child, a parent, a spouse, a domestic partner, or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship who has any of the conditions or needs for diagnosis, care, or preventive care; or domestic violence, sexual assault, or stalking, if the time absent from work, to obtain additional counseling, to seek relocation, to seek assistance from a victim services organization, to take related legal action, including preparation for or participation in any related civil or criminal legal proceeding, or to assist an individual related to the employee. The Order specifies that the paid sick leave would be in addition to fringe benefits required under the Davis-Bacon Act and the Service Contract Act. The requirements of the Order state that, Paid sick leave shall be provided upon the oral or written request of an employee that includes the expected duration of the leave, and is made at least 7 calendar days in advance where the need for the leave is foreseeable, and in other cases as soon as is practicable. November 10, 2016 Page 14

15 Under the terms of the Order, employers would only be permitted to require certification for employee absences of 3 or more consecutive workdays, no later than 30 days from the first day of leave. On February 25, 2016, the Department of Labor promulgated proposed regulations. The proposed regulations spell out definitions for purposes of the E.O., basing many of the terms used in the final regulations implementing the E.O., Establishing a Minimum Wage for Contractors. The main differences are that the term, child is more comprehensive than that used in the Family and Medical Leave Act as the definition is adopted from the definition of son or daughter in the OPM regulations governing leave for federal employees; and the phrase, employee, is also broader than the minimum wage E.O. as the phrase incorporates any person engaged in performing work on or in connection with a contract covered by the Executive Order, and whose wages under such contract are governed by the SCA, DBA, or FLSA, including employees who qualify for an exemption from the FLSA s minimum wage and overtime provisions, regardless of the contractual relationship alleged to exist between the individual and the employer, and any person performing work on in connection with a covered contract and individually registered in a bona fide apprenticeship or training program. The proposed regulations clarify that the phrase, individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship, is interpreted expansively as any person with whom the employee has a significant personal bond that is or like a family relationship, regardless of biological or legal relationship and encompasses non-nuclear family structures. Furthermore, for purposes of domestic violence, the agency derives terms from the Violence Against Women s Act (VAWA), proposing to define intimate partner as the equivalent as dating partner in VAWA, and borrows from the definition of legal assistance in VAWA to give significance to the term, related legal action or related civil or criminal legal proceeding. The proposed regulations among other things, provides an option for contractors to exempt workers performing in connection with covered contracts for less than 20 percent of their work hours in a given workweek as long as the contractor segregates the hours worked in connection with the covered contract from other work not subject to the Executive Order for that worker and in that circumstance, imposes additional recordkeeping requirements for contractors (the requirement to maintain records reflecting each worker s occupation (s) and the requirement to maintain records reflecting hours worked). If a contractor elects to not segregate time worked, a presumption exists that an employee is spending his or her time performing work on in connection with a covered contract. The proposed regulations also sets forth rules and restrictions regarding the accrual and use of paid sick leave; describes potential approaches with respect to how the paid sick leave provisions would apply to successor contracts; addresses the interactions of paid sick leave with paid sick time required by state or local law; and spells out the complaint procedure for violations and the imposition of remedies, including where the Secretary deems appropriate, the use of liquidated November 10, 2016 Page 15

16 damages in addition to pay/benefits denied, other actual monetary losses sustained as a direct result of the violation; or equitable or other relief. The proposed regulations state that the E.O. will be effective January 1, 2017, for new and replacement contracts. On April 12, 2016, the Chamber submitted comments, which may be accessed here: d_sick_leave_eo_proposed_regulations.pdf Furthermore, the Chamber submitted comments for the Paperwork Reduction Act Notice on April 25, On September 30, 2016, DOL issued final regulations. Below is a brief description of important changes made in the final rule: Provides that the following situations do not trigger the paid sick leave requirement: a contracting agency s exercise of a short-term extension, any pricing adjustments, or if there is a unilateral exercise of a pre-negotiated option to renew an existing contract. Provides for a new, temporary exclusion from the requirement of the E.O. for employees whose work is governed by certain collective bargaining agreements and delays until January 1, 2020, by which all contractors that take advantage of this limited compliance can come into compliance; Allows a contractor to estimate the portion of an employee s hours worked spent in connection with covered contracts as long as the estimate is reasonable and based on verifiable information; Allows a contractor to use PTO policy (paid time off with no explanation) to satisfy the paid sick leave requirement as long as an employee can access the leave for all of the reasons listed. The employer is not obligated to provide more leave if the employee exhausts the PTO leave for reasons not covered under the E.O./regulations. Permits paid sick leave to accrue no less frequently than at the conclusion at the end of the pay period or each month, whichever interval is shorter, rather than no less frequently than at the end of each workweek as originally proposed; Removes the requirement that successor contractors reinstate paid sick leave to employees who worked on the predecessor contract; Permits the contractor to have a general policy to require certification or documentation for absences of 3 or more consecutive full workdays if it does so in a manner reasonably calculated to provide actual notice of the requirement to employees; and Permits paid sick leave benefits to be paid by multiemployer plans. November 10, 2016 Page 16

17 Presidential Memoranda Updating and Modernizing Overtime Regulations On March 13, 2014, President Obama issued a Presidential Memorandum instructing the Secretary of Labor to update overtime regulations (Section 541) under the Fair Labor Standards Act. The Memorandum directs the Secretary to propose revisions to modernize and streamline the existing overtime regulations. In doing so, the Secretary is required to consider how the regulations could be revised to update existing protections consistent with the intent of the Act; the changing nature of the workplace; and to simplify the regulations to make them easier for both workers and businesses to understand and apply. On June 10, 2014, Secretary of Labor Perez hosted a meeting with Chamber representatives including several companies to hear concerns from employers about the impact of this rulemaking. Several of the attendees made clear that their employees have resisted being reclassified from exempt to non-exempt in the past as they see this as a demotion and often lose access to preferred benefits. On July 6, 2015, the Wage and Hour Division issued the proposed rule. The proposed regulation set the minimum salary required for exemption at the 40 th percentile of weekly earnings for fulltime salaried workers, which means the new salary threshold would be $50,440/year or $970/week, up from $23,660/year or $540/week. The proposal would also increase the total annual compensation requirement needed to exempt highly compensated employees to the annualized value of the 90 th percentile of weekly earnings of full-time salaried employees, $122,148/year, up from $100,000/year. Furthermore, the proposed regulation would establish a mechanism for automatically updating the salary levels annually based either on the percentile or inflation. Also, the Department sought comment regarding the possibility of including nondiscretionary bonuses to satisfy a portion of the standard salary requirement. In addition, the Department considered whether to add to the regulations examples of additional occupations to provide guidance on how the general executive, administrative, and professional exemption criteria may apply to specific occupations. In particular, while stating that help desk employees cannot qualify for an exemption, DOL requests comments from employer and employee stakeholders in the computer and information technology sectors as to what additional occupational titles or categories should be included as examples in the part 541 regulations. The Department of Labor did not propose specific regulatory changes for the duties test. However, the preamble to the proposal included a request for comments, to determine whether in light of our salary level proposal, changes to the duties tests are also warranted. The possible changes identified by the Department include requiring employers to show any employee is performing the primary duties for a specific amount of time to qualify as exempt. This would mirror what California has in place where employees must perform their primary duties for more than 50% of their time. This makes these exemptions very hard for employers to use. This request for comments is of major concern, potentially representing a back handed November 10, 2016 Page 17

18 approach to altering the duties test if the Wage and Hour Division inserts final regulatory text without giving parties a chance to comment. On September 4, 2015, the Chamber submitted comments, which may be accessed here: On May 23, 2016, the Department of Labor published the final regulations. The final regulations lower the salary threshold from $50,440 to $47,476; increase the highly compensated salary level to $134,000; automatically update the salary level every three years based on the 40 th percentile of earnings for full-time salaried workers in the lowest-wage Census Region, currently the South ; and permit employers to use nondiscretionary bonuses and incentive payment to satisfy up to 10 percent of the salary level for employees under the standard exemption. In addition, the final regulations do not make any changes to the duties test. The final rules set the effective date to December 1, 2016, except for health care providers with providers of Medicaid-funded services for individuals with intellectual or developmental disabilities in residential homes or facilities with 15 or fewer beds. These employers will have to comply with the overtime regulations by March 17, On September 20, 2016, the U.S. Chamber in conjunction with other business trade associations and local Chambers of Commerce filed a lawsuit challenging the overtime regulations in the Eastern District of Texas (Sherman Division), arguing that the salary threshold is too high, and DOL violated the FLSA since the agency lacks the statutory authority to index the threshold to inflation. At the same time, a coalition of 21 states filed a similar (but not identical) challenge in the same court. The difference between the two cases is that the states are seeking a preliminary injunction while ours does not. On October 14, 2016, the U.S. Chamber requested expedited summary judgment. On October 19, 2016, the Court consolidated the U.S. Chamber s case with the similar lawsuit filed by 21 states. Achieving Pay Equality Through Compensation Data Collection On April 8, 2014, President Obama issued a Presidential Memorandum to instruct the Secretary of Labor to develop regulations within 120 days to require federal contractors and subcontractors to submit to the Department of Labor summary data on the compensation paid their employees, including data broken down by race and sex. See commentary below for information regarding the proposed rulemaking pursuant to this memorandum. On August 8, 2014, the Office of Federal Contract Compliance Programs promulgated a proposed rule, developing a compensation data collection tool. Contractors and subcontractors would be required to submit additional data in an Equal Pay Report. The report would require the submission of summary data on employee compensation by sex, race, ethnicity, specified job categories, and other relevant data points such as hours worked, and the number of employees. Comments were originally due by November 6, On October 31, 2014, OFCCP extended the public comment period until January 5, November 10, 2016 Page 18

19 On January 5, 2015, the Chamber submitted comments, which may be accessed here: pdf The Spring 2016 Regulatory Agenda indicates that this proposal is now considered a long term action. Completed Rulemakings Representation-Case Procedures (Ambush Elections-Part I) On June 22, 2011, the National Labor Relations Board published a notice of proposed rulemaking that would have amended procedural elements governing the filing and processing of petitions relating to the representation of employees for purposes of collective bargaining with an employer. The proposal would have significantly limited the time period between when a petition is filed, and an election for a union is scheduled to be held. In addition, the regulations would have imposed new requirements on employers by requiring that the voter eligibility list to be provided to the union include each employee s work location, shift, and classification and additional contact information, such as telephone numbers, and addresses (where available). In addition, for any pre-election hearing, an employer would have been potentially barred from raising any new issues during the hearing if the relevant issue in dispute is not raised first in a new Statement of Position Form. The proposed rule also would have created a bright-line test with respect to proposed unit eligibility by declaring that if the hearing officer determines that the only genuine issues remaining in dispute concerning the eligibility or inclusion of individuals who would constitute less than 20 percent of the unit if they were found to be eligible to vote, the hearing officer will close the hearing. The cumulative impact of these proposed changes would have in all likelihood lead to a muzzling of employer free speech rights. The Chamber participated in the Board s July 18 th, 2011, public meeting on the rulemaking, and filed comments on the proposal on August 22, On September 6, 2011, the Chamber filed reply comments with the NLRB, with a focus on responding to arguments raised by the AFL-CIO and SEIU. The Chamber s comments may be accessed here: The Chamber s reply comments may be accessed here: On November 29, 2011, the Board unveiled a revised proposal to be voted upon in a meeting held on November 30, The revised proposal deferred decisions on many of the proposed provisions such as the new Statement of Position form, and the inclusion of addresses and phone numbers in the voter eligibility list until a later date. However, the Board s proposal still November 10, 2016 Page 19