Regulatory issues continued to draw attention this week as the Department of Labor published its “Overtime Rule” proposal for comment, with an eye toward ensuring the rule is finalized before the presidential election in 2020.
Meanwhile, the National Labor Relations Board has been in the news after scrutiny from Democratic lawmakers surrounding the board’s alleged use of contractors in reviewing comments on its joint-employer rulemaking—an issue the NLRB chairman believes is rooted in a misunderstanding of the role the contractors would be taking.
DOL Races to Finish Overtime Rulemaking Before January 2020
The Department of Labor has published its proposed “Overtime Rule” in the Federal Register, officially opening the comment period for individuals and organizations.
The rule, which would raise the income threshold under which an employer is legally required to pay salaried workers time-and-a-half for all work over 40 hours per week, is on a timeline to take effect by January 2020.
Targeting 2020 is likely to ensure the rule takes effect even if President Trump loses reelection, according to Tammy McCutchen, the previous administrator of the Wage and Hour Division of the DOL under President George W. Bush.
Should the party of the president flip, new leadership would be in order for the Labor and Justice departments. Democrat-led departments could restart litigation surrounding the stalled Obama-era overtime proposal, which had an income threshold of $47,476. The current proposal would make the income threshold $35,308.
The timeline laid out by the Department of Labor is expeditious for a rulemaking, which could make any extension of the comment period highly unlikely. All comments are due by May 21.
House Democrats and NLRB Chairman Trade Letters on Use of Contractors for Joint-Employer Rulemaking
In a recent attempt to assuage concerned Democrats, the chairman of the National Labor Relations Board, John Ring, issued a letter stating that no “substantive, deliberative review of the comments” on the NLRB’s proposed joint-employer standard will be outsourced to private contractors.
Reps. Bobby Scott of Virginia and Federica Wilson of Florida, the lead Democrats on the relevant House committees, sent a letter on March 14 to Chairman Ring stating they had heard that the NLRB was planning to outsource review of the nearly 29,000 comments submitted on the proposal. The two wrote that they were “extremely concerned” about the NLRB’s potential outsourcing and requested documents related to any hiring of contractors.
In his response, Ring said the agency will hire temporary support to assist only with the initial sorting of comments, and that all substantive work will be done in-house. He also said that all requested information is forthcoming.
ACG submitted a comment letter in support of the NLRB’s return to a limited definition of a joint-employer. We are continuing to monitor the rulemaking.
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Maria Wolvin is ACG Global’s vice president and senior counsel, public policy.
Ben Marsico is ACG Global’s manager of legislative and regulatory affairs.