October Government Updates

Federal Court Temporarily Blocks Plan to End Temporary Protected Status

A federal district court in California on Oct. 3 blocked the Trump Administration from terminating Temporary Protected Status (TPS) for more than 300,000 immigrants from El Salvador, Haiti, Nicaragua, and Sudan. U.S. District Judge Edward Chen issued a preliminary injunction siding with a group of individuals that brought the suit challenging the Trump Administration’s plans to end TPS status for individuals from these countries.

The TPS program allows immigrants from countries enduring crises such as health crises, war, or natural disasters, to live in the U.S. legally. According to court documents, there are more than 263,000 TPS beneficiaries from El Salvador, 58,000 from Haiti, 5,000 from Nicaragua and 1,000 from Sudan.

In his ruling, Judge Chen largely agreed with the claims made by TPS holders that the Trump Administration’s attempt to end the program was done in violation of the Administrative Procedures Act (APA) and Constitution’s Equal Protection Clause. APA regulates how administrative agencies of the federal government may propose and establish regulations, while equal protection is a guarantee under the Fourteenth Amendment to the Constitution requiring that states guarantee the same rights, privileges, and protections to all citizens.

The preliminary injunction remains in place while the litigation proceeds. As part of the temporary injunction, the Department of Homeland Security (DHS) cannot terminate TPS for individuals from Sudan, Haiti, El Salvador and Nicaragua pending resolution of the case.

NLRB Issues New Rulemaking on Joint Employer Standard

The National Labor Relations Board (NLRB) has published a proposal clarifying its joint-employer standard. Under the proposed rule, 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. Indirect influence and contractual reservations of authority would no longer be sufficient to establish a joint-employer relationship.

Deviating from the long-held standard for joint employer liability, in 2015 the NLRB, under President Barack Obama, broadened the definition of what constitutes a joint employment relationship. In the case involving Browning-Ferris Industries (Browning-Ferris), the Board decided that a joint employment relationship could exist even when companies have “indirect or unexercised control” over workers.

The rulemaking would allow the NLRB to return to a traditional standard for joint employment relationships requiring a business to have a direct and immediate connection to the employees in question to be held jointly liable for labor violations. NLRB states that the proposal should foster predictability, consistency and stability in the determination of joint-employer status. NLRB is accepting comments on the proposal until Nov. 13.

DOL Continues Listening Sessions on Overtime Pay Eligibility

The Wage and Hour Division of the U.S. Department of Labor (DOL) has announced it plans to hold another listening session on overtime pay eligibility in Washington, D.C., on Oct. 18. The listening session is being held at DOL headquarters.

This summer, DOL held public listening sessions to gather views on the Part 541 white-collar exemption regulations, often referred to as the “Overtime Rule.” Issued under the Fair Labor Standards Act (FLSA), these regulations implement exemptions from overtime pay requirements for executive, administrative, professional, and certain other employees.

DOL is expected to begin a new rulemaking next year updating overtime pay eligibility, and has stated it is interested in hearing views and ideas on possible revisions to the regulations. In July 2017, DOL issued a Request for Information (RFI) as a precursor to a new rulemaking.

Last year, a federal court permanently invalidated changes made to the Overtime Rule under the Obama Administration. This follows a Nov. 22, 2016, preliminary injunction by a federal court barring enforcement. The final rule was scheduled to take effect on Dec. 1, 2016.  As part of the final rule, the salary level under which employees qualify for overtime pay would have increased from $455 per week ($23,360 annually) to an estimated $913 per week ($47,476 annually). In addition, the rule included automatic updates to the threshold every three years without seeking public comment.

House Approves Tax Reform 2.0

The House of Representatives voted 220 to 191 on Sept. 28 to approve Protecting Family and Small Business Tax Cuts Act (H.R. 6760), which builds on the tax cuts passed last year by making many of the individual provisions permanent. Most of the individual provisions in the Tax Cuts and Jobs Act (Public Law No: 115-97) expire at the end of 2025, while most of the corporate provisions are permanent.

The House approved two other tax bills last week. The Family Savings Act (H.R. 6757) would make changes to retirement and education savings accounts and the American Innovation Act (H.R. 6756) would allow new business to deduct up to $20,000 in qualifying startup expenses.

The Senate remains cool to the tax cuts package and is not likely to consider the legislation; however, House Republicans want to highlight the tax cuts passed last year ahead of the midterm elections on Nov. 6.

DOL Offers Compliance Assistance for Association Health Plans

The Department of Labor (DOL) has added compliance assistance materials on Association Health Plans (AHPs) to its new Employer.gov website that will help employers and plan sponsors understand their obligations under the Employee Retirement Income Security Act (ERISA) when setting up and managing AHPs. In August 2018, DOL’s Office of Compliance Initiatives (OCI) launched Worker.gov and Employer.gov to provide better access to information about workers' rights and the responsibilities of employers toward their workers

On June 19, the Department of Labor (DOL) finalized a rule expanding health care coverage through AHPs, which allows some small business to offer more affordable health care coverage to their employees. Under the rule, these small business health insurance plans are not required to cover the 10 essential health benefits—such as prescription drugs and maternity care—required by the Affordable Care Act (ACA).

However, many ACA rules still apply to AHPs. Among the rules that still apply, plans cannot reject employers based on the health status of their workers, and individuals cannot be charged different amounts based on their health. Among the changes, it expands the definition of who can form and join an association. This allows associations to form solely for the purpose of offering insurance and enrolling members.

NIOSH Devotes Day to Respiratory Protection

On Sept. 5, the National Institute for Occupational Health and Safety (NIOSH) celebrated N95 Day, which the federal agency recognizes each year to emphasize the importance of the proper use of NIOSH-approved N95 filtering facepiece respirators in the workplace. Created in 2012 by the Center for Disease Control and Prevention (CDC) and NIOSH, N95 Day is part of a wider initiative to help people recognize the importance of respiratory protection in the workplace. NIOSH has a variety of resources for employers and workers to learn more about respiratory protection at its N95 Day home page.

More than 3 million employees nationwide are required to wear respiratory protection. The Occupational Safety and Health Administration (OSHA) requires an annual respirator fit test to confirm the fit of any respirator that forms a tight seal on the wearer’s face before it is used in the workplace. This ensures that users are receiving the expected level of protection by minimizing any contaminant leakage into the facepiece.

President Trump Signs Spending Bill to Keep Government Open

President Trump signed into law full-year funding for defense, education, and labor programs, on Sept. 28. In addition, the spending package includes temporary funding for some government agencies through Dec. 7. Government funding was set to run out on Sept. 30, and the government would have shut down without the action taken by Congress and the White House.

There was concern that President Trump might attempt to shut down the government since the spending package did not include funding for construction of a border wall along the U.S. – Mexico border. Seven of the 12 government spending bills provide temporary funding for Fiscal Year (FY) 2019, which began on Oct. 1.

Government spending bills that must still be addressed by Congress account for approximately $325 billion for nine Cabinet departments and various federal agencies. With the House of Representatives already home to campaign until Election Day, it is unclear if Congress will look to wrap up FY 2019 spending in the lame-duck session starting in November or punt the decision into next year by approving another short-term spending bill.