Goverment Entities Issue Flury of Rules, Orders and Guidance

By Corie J. Anderson - Peters, Revnew, Kappenman & Anderson, P.A.

May 18, 2020

US Department of Labor Issues Final Rule Providing Flexibility to Retail and Service Industry Employers
The U.S. DOL released a final rule today, effective immediately, regarding retail and service industry exceptions from overtime for employees primarily paid on commissions. The new rule simply removes two (2) previous provisions which listed industries that the DOL then-viewed as having “no retail concept” or “may be recognized as retail”. Accordingly, a business may now qualify for the exemption if previously listed on the “no retail concept” list. Accordingly, the DOL will apply the same analysis to all establishments to determine if it is a retail or service establishment.

EEOC Suspends EEO-1 Data Collection Until 2021
Due to COVID-19 and related delays in Federal reporting requirements across the government, the EEOC has recently announced that it is delaying collection of 2019 EEO-1 Component 1 data (employment data categorized by race/ethnicity, gender and job category) until the EEOC resumes normal operations, estimated to be in 2021. An EEO-1 must be filed by all companies with more than 100 employees or federal contractors or first-tier subcontractors with 50 or more employees and a prime contract in excess of $50,000. The EEOC expects the 2019 Component 1 data collection will be collected in March 2021, along with 2020 EEO-1 data. The new deadline will be posted when it is determined, and all EEO-1 filers should receive a notification letter. Finally, the EEOC has stated that it will not collect Component 2 data (employment data categorized by pay) at all in the future (at least under the current administration).

Construction Companies Must (Once Again) Provide Eyewash Showers
On May 15, 2020, the U.S. Court of Appeals for the D.C. Circuit held that OSHA may in fact require construction companies to provide eyewash showers for workers. While the rule was enacted in 1971, in 2018, the Occupational Safety and Health Review Commission stated OSHA lacked the authority to require such eyewash showers. In short, despite eyewash showers being difficult for construction companies to install due to lack of plumbing and portable water containers that must be relocated frequently, the requirement is lawful.

USCIS Extends Period for Form I-9s to Be Initially Verified Remotely
On May 15, 2020, the Department of Homeland Security and U.S. Immigration and Customs Enforcement announced that employers operating remotely may verify Form I-9 documents remotely (video, fax, email), but must still obtain, inspect and retain copies of the documents within three (3) business days. Once the documents are physically inspected (in person), employers should note “COVID-19” as the reason for physical inspection delay in Section 2 Additional Information. Employers should also add, “documents physically examined on DATE” to Section 2 or Section 3, as appropriate. Further, employers who were served with a Notice of Inspection but who have not yet responded have been granted an automatic 60 day extension to respond (and another extension will be considered at that time). Accordingly, employers with pending inspections (we had several prior to the COVID-19 pandemic) are unlikely to see a response anytime soon.

Commercial Motor Vehicle Hours of Service Rule Amended
On May 14, the Federal Motor Carrier Safety Administration released a final rule that updates the hours of service rules. However, the amendment neither increases driving time, nor the requirement that a 30-minute break be taken within eight (8) consecutive driving hours.  In sum, the Final Rule:
•    Requires a 30-minute break after eight (8) hours of consecutive driving (versus on-duty time) and allows on-duty/not driving status to qualify as the break (rather than off-duty status).
•    Modifies sleeper berth exception to allow drivers to split the required ten (10) hours off duty into two periods (an 8/2 or 7/3 split), with neither period counting against the fourteen (14) hour window.
•    Extends the adverse driving conditions window by an additional two (2) hours.
•    Lengthens the maximum duty period for short-haul exception drivers to fourteen (14) hours and extends the distance limit to 150 air miles.