DOL’s Final Overtime Rule Expected in Latter Half of 2016

The Obama administration has indicated the U.S. Department of Labor’s (DOL’s) highly controversial rule that will expand the number of workers who are eligible for overtime pay - by changing many currently exempt workers’ status to nonexempt - will not be issued before July 2016.

According to the Fall 2015 Unified Agenda and Regulatory Plan, published on Nov. 20 by the Office of Management and Budget, the earliest the final rule could be released would be in July, but DOL officials have indicated that the rule is likely to be issued sometime closer to the end of the year while still leaving time for the rule to take effect before the president leaves office.

The proposed rule was released on June 30 of this year and received more than 250,000 comments during the comment period this summer.

Dates Are Aspirational

The Unified Agenda, published twice yearly in spring and fall, identifies regulatory priorities and contains additional details about the most significant regulatory actions that federal agencies expect to take in the coming year. However, the information it provides is collected well in advance of its publication, and the dates it gives for upcoming rules and regulations is best viewed as the earliest possible time frame, rather than as the likely issuance date, explained Nancy Hammer, senior government affairs policy counsel at the Society for Human Resource Management.

“The important thing to know about these dates is that they are estimates and rarely accurate,” Hammer said. “The agency has no legal obligation to meet that published deadline. Some rules have been on the regulatory agenda for years and they just change the date with the new agenda comes out.”

While SHRM anticipates that the rule will, in fact, become final in 2016, “I would not put too much emphasis on the July date” in the Unified Agenda, Hammer added. “DOL officials have said ‘late 2016.’ The bottom line is that HR needs to be ready to comply in 2016—that means looking now at how the rule could impact their organization,” she advised.

As SHRM Online recently reported, and Hammer noted, Solicitor of Labor Patricia Smith told attendees at an American Bar Association conference Nov. 5 that the DOL will not release its final rule on overtime until late 2016. That suggests that the time between publication of the final rule and its effective date will be short, and that the effective date of the new regulations likely will not exceed 30 to 60 days after the final regulations are published.

“The later the final rule is published, the smaller the window of time the department can allow before the new regulations become effective,” said Paul DeCamp, an attorney with Jackson Lewis in the firm’s Washington, D.C., office and a former administrator of the Wage and Hour Division.

Article re-published from SHRM's Newsletter by Stephen Miller, CEBS, is an online editor/manager for SHRM
Allen Smith, J.D., manager of workplace law content for SHRM, contributed to this article

EEOC Sends Notice of Proposed Rulemaking on ADA and Wellness Programs to OMB for Clearance

The U.S. Equal Employment Opportunity Commission (EEOC) on March 20 voted to send a Notice of Proposed Rulemaking (NPRM) on the interplay of the Americans with Disabilities Act (ADA) and the Affordable Care Act (ACA) with respect to wellness programs to the White House Office of Management and Budget (OMB) for clearance.

This proposed rule, which was approved by a bipartisan vote, would amend the regulations implementing the equal employment provisions of the ADA to address the interaction between Title I of the ADA and financial incentives as part of wellness programs offered through group health plans.

The submission of the NPRM to OMB represents the start of the regulatory process. After OMB approval, the proposed rule will be published in the Federal Register for a 60-day public notice and comment period. The NPRM cannot be made public prior to its publication in the Federal Register.

Source: EEOC

This information is intended to be educational and should not be considered legal advice on any specific matter.

Department of Treasury proposes rule aimed to ensure diversity in its contractor workforce

Source: Lexology article by Lauri A. Damrell , Lisa Lupion and Gary R. Siniscalco  of  Orrick Herrington & Sutcliffe LLP

Consistent with the mandate under the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Treasury Department issued a proposed rule that would require contractors doing business with the agency to confirm their commitment to equal opportunity in employment and contracting. The rule would amend the Department of the Treasury Acquisition Regulation to require any entity entering a contract with the agency to insert a statement in each contract that it has made affirmative efforts to include women and minorities in its workforce. If the contractor in turn enters into a subcontractor arrangement to carry out the government contract, the contractor must include the same provision in any such subcontract that has a monetary value of more than $150,000.

In addition to the specific contractual provisions, the proposed rule would provide the Treasury Department with an opportunity to request information from the contractor to demonstrate that the contractor has made a “good faith effort” to satisfy its commitment to diversity. The proposed regulation explains that the documentation that may be requested to demonstrate this “good faith effort” can include: (1) an EEO-1 report of the contractor’s employees, detailing the number of employees and the number of minority and women employees; (2) a list of subcontract awards under the contract at issue, including the dollar amount of such subcontract award, the date of the award, and the subcontractor’s race, ethnicity and gender; (3) EEO-1 data for subcontractors performing work under the contract; and (4) the contractor’s plan to ensure that minorities and women “have appropriate opportunities to enter and advance within its workforce, including outreach efforts.” Failing to comply with these obligations can result in loss of the contract.

While government contractors are accustomed to providing EEO-1 reports and other data in connection with their government contracts, the proposed requirements of obtaining this data from their subcontractors and affirmatively including specific diversity inclusion provisions into their subcontractor agreements would reflect an expansion of their existing obligations. Furthermore, while many financial institutions have affirmative action obligations, these rules likely will cover many more institutions who contract or subcontract to provide services to the Treasury Department.

The comment period for this proposed rule is open until October 22, 2012. 

Click here to submit a comment.

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This information is intended to be educational and should not be considered legal advice on any specific matter.