Update: What’s Happening to 2016 Rules and Regulations with the New Administration?

By Liani J. Reeves - Bullard Law

June 12, 2017

Before the change in administration, employers were preparing for a number of new rules and requirements put in place by various federal agencies. What happened to them?

As the new administration is reaching its six month anniversary, we thought it would be helpful to update you on a number of the new rules and requirements that employers were preparing for going into 2017.

OSHA Injury and Illness Logs to be Submitted July 1, 2017 – Likely Delayed

OSHA promulgated new rules effective January 1, 2017 which required additional reporting of injuries and illnesses by employers with 250 or more employees or employers with 20-249 employees in “hazardous industries.” OSHA intended to post the reports on its website. The first round of reports is due to be submitted electronically to OSHA by July 1, 2017. Employers may be wondering where to submit such reports. The OSHA website states: “OSHA is not accepting electronic submissions of injury and illness logs at this time, and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 Form 300A electronically. Updates will be posted to this webpage when they are available.”

It appears that employers will have some delay in the new OSHA reporting. However, employers should continue to collect the data that might need to be submitted if and when OSHA puts the appropriate mechanisms in place. Further, the requirements related to employer policies went into effect January 1, 2017 and are still in effect. Employers should review their policies to ensure that they do not have potential chilling effects on employee reporting of accidents and injuries, and inform employees of their right to report workplace injuries and illnesses.

Parts of OSHA’s regulatory authority that were enhanced by the Obama administration have already been scaled back. For example, the former administration increased the enforcement authority of recordkeeping violations from six months to five years. That time period has been changed back to six months. The Senate and House approved, and President Trump signed, a measure eliminating the rule in March.

EEO-1 Pay Data Report – A Go

In 2016, the EEOC significantly increased reporting requirements for collection of demographic information on race, gender, and ethnicity by job category, to also include pay data and hours worked for employees grouped in twelve different pay bands. The goal was to provide additional information that could reveal pay disparities based on gender, race, and ethnicity. The information will be reported by March 31, 2018 and will require employers to provide data for any pay period it chooses that occurred between October 1 and December 31, 2017. As of the date of this Alert, there have been no changes to this rule or walk back on the new reporting requirements. Therefore, employers should continue to prepare for the reporting and consider conducting self audits to reveal and address any perceived pay disparities. Interestingly, Victoria Lipnic, the new acting chair of the EEOC and the only Republican on the five member commission, voted against the EEO-1 pay data report proposal. As Acting Chair, she has continued to publicly speak about her doubts that the purported benefits outweigh potential costs to employers. The EEOC currently has one vacant seat. We will keep you updated on any changes.

Increased Salary Threshold Under FLSA Overtime Rule – On Hold

Effective December 1, 2016, the U.S. Department of Labor rules increased the minimum salary level for Fair Labor Standards Act “white collar” overtime exemptions from $455/week to $913/week ($47,476 per year) and provided for automatic updates of the salary threshold every three years based on wage growth. As employers were diligently auditing payroll records to determine whether certain employees currently classified as exempt earn less than the new minimum salary and needed to be reclassified, the rule was being challenged in court. On November 22, 2016, a court issued a nationwide injunction blocking the rule from going into effect. The DOL under the former administration appealed the ruling. On February 22, 2017, the DOL under the Trump administration requested an extension until May 1, 2017 “to allow incoming leadership personnel adequate time to consider the issues.” On April 14, 2017, the DOL requested another extension until June 30, 2017 to file its appeal brief, noting that a new labor secretary had yet to be confirmed. On April 27, 2017, the Senate confirmed R. Alexander Acosta as labor secretary. During a hearing on Wednesday, June 7, 2017, Secretary Acosta said the DOL plans to look at the overtime rule as a “general matter” and that they will be asking for public information and comment on the rule in the coming weeks. We are now waiting for the DOL’s brief or other DOL action to see how the DOL plans to proceed. Even if it decides to pursue the appeal and fight for the rule, the rule will likely not go into effect while the appeals are pending. Bullard will keep you advised of any new developments. As of now, employers are not required to implement the new rule but should keep the work done to review positions and pay in case the rule eventually comes into effect or the DOL adopts a new but similar rule.

Persuader Rule – Not in Effect

For many years, the DOL interpreted the federal Labor Management Reporting and Disclosure Act to require disclosure of “direct persuader” activities in support or opposition of a union election, but activities that had indirect influence, such as seeking advice, developing materials, or training supervisors, did not have to be reported. In March 2016, the DOL adopted a new interpretation of the rule and its “advice exception” that provided that reports must be filed about any activity that “indirectly persuaded” employees on how to vote. The rule was challenged because it would unfairly discourage employers from receiving confidential legal advice. On November 16, 2016, a court issued a nationwide injunction blocking the rule from going into effect. Just days before the change in administration, the DOL appealed the order. The DOL under the new administration asked the court to put the case on hold while it pursues an administrative process to rescind the rule. Secretary Acosta wrote an op-ed that the persuader rule would be the DOL’s first effort to roll back on administrative regulations put in place under the former administration and on June 8, 2017, the DOL formally announced that it would start the process to formally rescind the rule. It is fair to assume that the rule will not take effect.