Legislative Outlook for 2018

By Lehr Middlebrooks Vreeland & Thompson, P.C.

January 26, 2018

The pro-business shift, begun in 2017 under the Trump administration, will continue in 2018. Thus, the DOL will undoubtedly set new standards for the payment of overtime and the application of any exemptions, while the Senate looks to force through a new joint employer standard.

The OT Exemption under President Obama

President Obama’s DOL more than doubled the threshold to $47,476 for application of an exemption established in 2004.

There is no question that the 2004 exemption needs updating, and DOL chairman Acosta under President Trump has already announced a plan to update the 2004 exemption.

The FLSA lets businesses exempt employees from overtime if they earn a certain salary and perform certain enumerated “executive, administrative, or professional” tasks.

Expect the updated rule to happen in 2018 through the rule-making process.

The Senate’s Joint Employer Rule

While Browning-Ferris (BFI) has already been reversed by the Labor Board, a future Democratic majority could restore the BFI standard. The pending bill, known as the “Save Local Business Act,” would amend the NLRA and the FLSA to establish a “direct control” rule.

This bill faces an uphill battle and is not expected to go anywhere, as it will in all probability, be filibustered in the Senate. This assumes no changes in the Senate filibuster rules.

The “Quickie Election” Rule Rollback

I predict a rule-making change back to the old rules. This will take some time as the rule-making rules are arcane.

EEOC Pay Data Initiative

The current EEOC chairperson, Chai Feldblum, has indicated that the OMB has directed the EEOC to go “back to the drawing board”, not scrap the initiative entirely. Look for some changes to take place where the more onerous requirements are abandoned by theEEOC, but more reporting is required than is required presently.

State and Local Trends

States are trying to rein in confidentiality agreements when settling sexual harassment cases in light of the Harvey Weinstein scandal. Critics claim that overly restrictive confidentiality agreements keep the settlements under wraps and allow the harassers to remain in positions of power.

In the country’s more liberal states, the local municipalities and cities have passed wage laws, restricting the use of salary history in setting wage offers, and requiring employers to give employees paid time off. I do not expect much, if any, support of these measures on the federal level under a Trump administration or in Republican-controlled state legislatures.