Government Affairs

April 2019 Government Update

DOL Releases Proposed Rule on Overtime Rate Regulations

Recently, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) released a proposed rule that would update the regulations governing regular rate requirements, which define what forms of payment employers include and exclude in the “time and one-half” calculation when determining workers’ overtime rates. 

The proposed rule focuses primarily on clarifying whether certain kinds of benefits and perks must be included in the regular rate.  Comments must be submitted by 11:59 pm on May 28, 2019 in order to be considered.

The proposed rule includes clarifications to confirm that employers may exclude the following from an employee’s regular rate of pay:

  • The cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes, and employee discounts on retail goods and services;
  • Payments for unused paid leave, including paid sick leave;
  • Reimbursed expenses, even if not incurred “solely” for the employer’s benefit;
  • Reimbursed travel expenses that do not exceed the maximum travel reimbursement under the Federal Travel Regulation System and that satisfy other regulatory requirements;
  • Discretionary bonuses, by providing additional examples and clarifying that the label given a bonus does not determine whether it is discretionary;
  • Benefit plans, including accident, unemployment, and legal services; and
  • Tuition programs, such as reimbursement programs or repayment of educational debt.

The proposed rule also includes additional clarification about other forms of compensation, including payment for meal periods, “call back” pay and others.  For questions, contact Kevin McKenney at kmckenney@bscai.org. 

DOL Releases Proposed Rule on Joint Employer Standard

The Department of Labor (DOL) announced a proposed rule to clarify the methodology for determining joint employer status.  The proposal is meant to provide employers clarity and certainty regarding their responsibility to pay federal minimum wage and overtime for all hours worked over 40 in a workweek.

To establish whether one company is a joint employer of another company’s workers, DOL intends to propose four factors to determine whether the potential joint employer actually exercises the power to:

  • Hire or fire the employee;
  • Supervise and control the employee’s work schedules or conditions of employment;
  • Set the employee’s pay rate and method of payment; and
  • Maintain the employee’s employment records.

The proposal also includes a set of joint employment examples that would further assist in clarifying joint employer status.  The agency said this is the first meaningful revision to its joint employer regulation since 1958. BSCAI will review the proposed rule, which will be officially published soon, and will be submitting comments to DOL.  For questions, contact Kevin McKenney at kmckenney@bascai.org. 

McConnell Signals Willingness to Act on Immigration Laws

Recently, Senate Majority Leader Mitch McConnell (R-KY) indicated his willingness to work with Democrats on a bipartisan immigration reform package.  McConnell stated that in addition to addressing border security, he is interested in looking into current asylum laws, which he feels are “challenging.” 

The Republican leader’s statements come as the White House has been quietly trying to reach out to Democrats to try to see if there is a path forward on immigration legislation.

Acting White House chief of staff Mick Mulvaney and acting Homeland Security Secretary Kevin McAleenan met with a group of Senate Democrats recently, including Sens. Dick Durbin (D-IL), Jeanne Shaheen (D-NH) and Dianne Feinstein (D-CA).

This immigration talk comes amid a shake-up at the Department of Homeland Security (DHS), which has seen the departure of nearly all senior department officials over the past two weeks.

BSCAI will be monitoring the debate in congress and weigh in where appropriate.  For questions, contact Kevin McKenney at kmckenney@bscai.org. 

Legislation Introduced to Establish Government Neutrality in Federal and Federally-Assisted Contracts

Recently, U.S. Sens. Todd Young (R-IN) and David Perdue (R-GA), and Reps. Ted Budd (R-NC) and Francis Rooney (R-FL) introduced legislation (S. 907 and H.R. 1858) that states the federal government cannot mandate project labor agreements (PLAs) on federal projects.  The bill’s text states that it intends to promote and ensure open competition on federal and federally funded or assisted construction projects and maintain neutrality towards the labor relations for these projects, reduce construction costs and expand job opportunities.