Ruling on a narrow, but significant question, the US Supreme Court affirmed that the white . Get the Quickstart Guide for Employers. Employment and Training Administration Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, In October 2022, DOLs Employment and Training Administration (ETA) plans to issue an NPRM to establish a new wage methodology for setting prevailing wage levels for H-1B/H-1B1/E-3 and PERM programs consistent with the requirements of the Immigration and Nationality Act. The proposal will likely amend the Trump administrations final rule that was scheduled to take effect on November 14, 2022, but was subsequently vacated by a federal court in June 2021. The salary basis threshold has been raised numerous times since Congress enacted the FLSA in 1938. The new proposal is likely to be issued in the near future and could be issued as early as this month. It need not coincide with the calendar week, but may begin on any day and at any hour of the day. Effective Jan. 1, 2020, the federal minimum salary threshold increased to $684 a week. However, court challenges prevented the rule from taking effect and it was permanentlyenjoinedin September 2017. The following policy statements* will be included in your export: *Use of this material is governed by XpertHRs Terms and Conditions. The DOL, HHS, and Treasury just released an FAQ that provides guidance on if Drug Manufacturers' Coupons disqualify Health Savings Accounts. To cope with a paradoxical labor market, HR pros still squarely focused on recruiting may need to re-evaluate role requirements, inclusion initiatives and more. Congress must also have keen insight of the administration's regulatory plans to assess its budget requests and operations. Reposted with permission. Now is a great time to put your "HR house" in order when it comes to accurate exempt/non-exempt classifications and earning thresholds. var currentUrl = window.location.href.toLowerCase(); The two areas of anticipated revision are to the salary level and duties tests for an employee to be exempt from overtime pay. Pay transparency, employee privacy, compassionate leadership and political biases are among this years hot debates, according to labor experts. The Federal Trade Commission has issued a proposed rule that would ban employers from imposing noncompete agreements on their workers. USCIS Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program, In May 2023, the Department of Homeland Security (DHS)s United States Citizenship and Immigration Services (USCIS) plans to release an NPRM to amend its regulations governing H-1B specialty occupation workers and F-1 students who are the beneficiaries of timely filed H-1B cap-subject petitions. The NPRM will specifically propose to revise the regulations relating to employer-employee relationship and provide flexibility for start-up entrepreneurs; implement new requirements and guidelines for site visits including in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data; provide flexibility on the employment start date listed on the petition (in limited circumstances); address cap-gap issues; bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system; and clarify the requirement that an amended or new petition be filed where there are material changes, including by streamlining notification requirements relating to certain worksite changes, among other provisions., ICE Optional Alternative to the Physical Examination Associated With Employment Eligibility Verification (Form I-9), According to the Regulatory Agenda, DHS plans to issue an NPRM in July 2022 to revise employment eligibility verification regulations to allow the Secretary to authorize alternative document examination procedures in certain circumstances or with respect to certain employers.. On June 15, 2012, theDHS established the DACA policy. The law covers virtually every employer . After a new overtime rule is proposed, the public will have at least 30 days to comment on it before the DOL can issue a final rule. The division encourages all stakeholders to participate in the regulatory process. All rights reserved. document.head.append(temp_style); You may be trying to access this site from a secured browser on the server. These factors include the investment, control and opportunity for profit or loss factors. In November 2019, before it could take effect, a federal judge in Texas enjoined the new overtime rule on a nationwide basis, declaring it "unlawful.". Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRMs permission. Addressing selected emerging and developing issues such as qualification standards that discriminate against individuals with disabilities, protecting individuals affected by pregnancy, childbirth and related medical conditions under the Pregnancy Discrimination Act, employment discrimination associated with COVID-19 and other threats to public health, and technology related discrimination. Specifically, the flexibility guidance allows for remote inspection of Form I-9 documents in situations where employees work exclusively in a remote setting due to COVID-19-related precautions. The EEOC reported that in resolving the lawsuit, the employer agreed to a two-year consent decree; will pay the former employee $47,500 in monetary damages; train its employees on the ADA; make changes to its employment policies; and allow the EEOC to monitor how it handles future requests for accommodation. Federal law currently requires overtime pay only for employees who earn an annual salary of less than $35,568, although many such workers are excluded. Misclassification denies basic worker protections such as minimum wage and overtime pay and affects a wide range of workers in the home care, janitorial services, trucking, delivery, construction, personal services, and hospitality and restaurant industries, among others. .cd-main-content p, blockquote {margin-bottom:1em;} DOL had previously planned to release the proposed rule in October 2022. Copyright 2023 LexisNexis Risk Solutions Group. That final rule took effect on January 1, 2020. State law requires [] The two areas of anticipated revision are to the salary level and duties tests for an employee to be exempt from overtime pay. Additionally, CUPA-HR submitted commentsin response to the RPI based on a recent survey detailing members experiences with the Form I-9 verification process flexibilities. The U.S. Department of Labor in September 2019 updated the federal overtime rules regarding executive, administrative, and professional workers. Agendas are generally released in the fall and spring and set target dates for each agency and sub-agencys regulatory actions for the coming year. Those changes, however, were less significant than the 2016 efforts to modify FLSA provisions, which were halted later due to a preliminary injunction. As with the overtime rule, the final independent contractor rule would take effect no sooner than 60 days after it is published in the Federal Register. Despite relying on the labor of millions of workers to provide their services, platform companies have established a business model on the premise that they employ no one. Currently, the Department of Labor requires that employees covered by the Fair Labor Standards Act must receive overtime pay for working more than 40 hours in a workweek, unless the employee is covered by certain exemptions. The Notice of Proposed Rulemaking was originally slated for April 2022 but then delayed to October of that year. "If there is a significant increase in the salary-basis level for the executive, administrative and professional exemptions, this change will require employers to identify and . DOL addressed the topic again in 2019 and enacted changes on January 1, 2020. Once proposed, stakeholders will have an opportunity to comment before the agency finalizes its rule. p.usa-alert__text {margin-bottom:0!important;} March 21, 2022. #views-exposed-form-manual-cloud-search-manual-cloud-search-results .form-actions{display:block;flex:1;} #tfa-entry-form .form-actions {justify-content:flex-start;} #node-agency-pages-layout-builder-form .form-actions {display:block;} #tfa-entry-form input {height:55px;} The proposed rule . An official website of the United States government. While independent contractors have an important role in our economy, we have seen in many cases that employers misclassify their employees as independent contractors, particularly among our nations most vulnerable workers, said Secretary of Labor Marty Walsh. ("WHD") plans to develop and release in April 2022 a Notice of Proposed Rulemaking ("NPRM") on "the exemption of bona fide executive, administrative, and professional . In its recent spring regulatory agenda, the U.S. Department of Labor (DOL) announced its plans to issue a proposed overtime rule in October 2022. The Equal Employment Opportunity Commission has settled a COVID discrimination case and also published for public comment its draft strategic enforcement plan. XpertHR is part of the LexisNexis Risk Solutions Group portfolio of brands. -1) { Democrats want OT salary threshold upped to $82,732 by 2026. Before the Fifth Circuit reviewed Judge Mazzants decision, the Trump administration rescinded the rule and raised the salary threshold to the current $684/week standard. In order for an employee to be exempt, the employee must be paid a salary of at least $684 per week, and must meet certain duties tests. }); if($('.container-footer').length > 1){ The case hinged on the "salary basis" test for the white . A final rule on improving tracking of workplace injuries and illnesses is slated for December, as well. Please purchase a SHRM membership before saving bookmarks. Find the latest news and members-only resources that can help employers navigate in an uncertain economy. Although there are no legal implications regarding the administration's failure to issue the agenda in a timely manner, there are important considerations for the regulated community. The salary basis threshold was increased in 2019 from $23,660/year to $35,568/year. DOL had previously planned to release the proposed rule in October 2022. This spring, the U.S. Department of Labor (DOL) is expected to announce recommended changes related to employee salary for overtime rules as part of the Fair Labor Standards Act (FLSA). That salary threshold had been set at $23,600 ($455 per week) since 2004, and DOL sent shockwaves through the employment community when it proposed and finalized a rule to more than double that number, upping the threshold to $47,476 threshold ($913 per week). After the Trump administration started the rulemaking process anew, in September 2019, DOL issued a newfinal ruleraising the minimum salary level required for exemption from $23,660 annually to $35,568 annually. FLSA requirements relating to minimum wage, overtime, and . According to the FTC, this new rule could increase wages by nearly $300 billion annually and expand career opportunities for about 30 million Americans. Washington, DC 202101-866-4-US-WAGE1-866-487-9243, Administrator Interpretations, Opinion and Ruling Letters, Resources for State and Local Governments. The Department delayed the rule on March 4, 2021, and then withdrew it on May 6, 2021, believing that it was inconsistent with the Fair Labor Standards Act's text and purpose. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely. Employees paid below that figure must receive time-and-one-half their regular rate of pay when they work more than 40 hours in a workweek. Please log in as a SHRM member. Assist with the proper classification of employees and independent contractors under the FLSA. Shannon Meade is executive director of Littler's Workplace Policy Institute in Washington, D.C. 2023 Littler. View our privacy policy, privacy policy (California), cookie policy, supported browsers and access your cookie settings. Any information you send to Locke Lord LLP through this website is on a non-confidential and non-privileged basis. The proposed rule, which would rescind and replace a prior rule published in January 2021, would shift the analysis of whether a worker is an employee of a business for purposes . Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. Learn how SHRM Certification can accelerate your career growth by earning a SHRM-CP or SHRM-SCP. Overtime Pay. $("span.current-site").html("SHRM China "); United States Department of Labor (DOL) is expected to issue a new proposal for a new salary threshold for several overtime exemptions under the Fair Labor Standards Act (FLSA). CUPA-HR filed anextension request with the department asking for an additional 90 days to evaluate the NPRMs impact on [members] research missions and collect the information needed in order to provide thoughtful and accurate input to the USDA, as well as official comments that were pulled from 2012 comments CUPA-HR submitted with the Society for Human Resource Management (SHRM). Different workweeks may be established for different employees or groups of employees. Please log in as a SHRM member before saving bookmarks. .manual-search ul.usa-list li {max-width:100%;} The new standard will revise the 2020 Trump Administrations final rule, which reversed the Obama-era NLRB decision in the 2015Browning-Ferris Industriescase and established that an entity can only be a joint employer if it actually exercises control over the essential terms and conditions of another employers employees. In the Biden administration's fall 2021 regulatory agenda, the Department of Labor (DOL)'s Wage and Hour Division (WHD) announced that it planned to release in April 2022 a Notice of Proposed Rulemaking (NPRM) changing criteria for the "executive, administrative and professional" exemptions from the overtime pay requirements under the Fair Labor Standards Act (FLSA). The agency plans to release a new overtime threshold in May. Another increase has long been on the Biden administrations agenda, but it has not said what dollar figure it has in mind. The proposed rule would provide guidance on classifying workers and seeks to combat employee misclassification. Many unions and other worker advocates believe the DOL should match or exceed the $921 salary level of the 2016 proposed rule, with several groups demanding the . Additionally, not knowing regulatory priorities can have an impact on budget and resource planning for employers, especially during a time of high inflation and anticipated economic recission. The following roles are exempt from overtime: The salary test is where we expect to see changes. Although the DOL will almost certainly grant employers several months of lead-up time before implementing the new threshold, understanding the potential impact of a dramatic increase now will help employers adjust in the future. The Overtime Rule. It is possible that DHS will use that feedback to develop and implement this NPRM. Jan 23, 2023 | Neil Reichenberg, HRCI Contributing Writer. The Department of Labor remains committed to addressing the issue of misclassification.. OIRA is the White House office responsible for reviewing regulations and proposed regulations before they are publicly released and generally takes 30-90 days for this review, indicating ICE is on target to issue their proposal in July. .table thead th {background-color:#f1f1f1;color:#222;} CUPA-HR filedcommentsin opposition to the Trump administrations regulations on the issue andin responseto the Biden administrations RFI. Labor Rights. Labor Department's New Overtime Rule Will Ruffle Feathers - Speaking of overtime, the DOL has indicated it will issue a new federal regulation transforming the overtime rule by April 2022, and . President Biden touted increasing the salary threshold throughout his presidential campaign. The most recent regulatory agenda set the date at May 2023. . ol{list-style-type: decimal;} According to the EEOCs lawsuit, Ronisha Moncrief worked for ISS Facility Services, Inc. as a health and safety manager. The DOL noted in its agenda that the Occupational Safety and Health Administration (OSHA) has already issued an emergency temporary standard to address the danger of COVID-19 in health care workplaces. 96% of members agree: "SHRMs information is very useful to me". var temp_style = document.createElement('style'); Last October, the DOL proposed a new independent contractor rule that would establish a version of the "economic realities test" as the standard for determining whether a worker is an employee or an independent contractor under the FLSA. Marty Walsh, the Secretary of Labor indicated previously that the salary basis threshold is too low and as part of the review, the DOL will consider whether regular and automatic updates are needed. Conversely, there is nothing stopping the DOL from issuing new rules before its target dates, either. In publishing the proposed new rule . Let HR Dive's free newsletter keep you informed, straight from your inbox. Joint-employer status under the National Labor Relations Act. Author: Michael Cardman, XpertHR Senior Legal Editor. Please confirm that you want to proceed with deleting bookmark. We also anticipate some proposed changes to the duties tests. Many unions and other worker advocates believe the DOL should match or exceed the $921 salary level of the 2016 proposed rule, with several groups demanding the salary level be set at $1,000 per week. In 2021, four congressional Democrats argued for a threshold in line with the historical high point of salary thresholds the 55th percentile of earning of full-time salaried workers nationwide. That would have resulted in a threshold of $82,732 by 2026, the letter said. Rescind the 2021 Independent Contractor Rule. On June 7, ICE sent its proposal to the Office of Information and Regulatory Affairs (OIRA). The proposal will likely amend the Trump administration's final . For Long Island and Westchester County . } NAM Vice President of Infrastructure, Innovation and Human Resources Policy Robyn Boerstling joined us to explain what's happening. . 2022: Fall 2022 Rulemaking Comments. Compete for talent by understanding how anticipated significant changes to FLSA earnings thresholds will affect your organization, Human Resources and Compensation Consulting, Prepare Now for FLSA Rule Changes Coming Soon, Affordable Housing Insurance and Consulting for Nonprofits, Business Continuity Planning and Resiliency Services, Claims Management and Third Party Administration, Compensation Consulting and Total Rewards Programs, Diversity, Equity and Inclusion (DEI) Consulting, Human Resources and Compensation Consulting Overview, Meet the Human Resource Compensation Consulting Team, Physical and Emotional Wellbeing Consulting, National Center for Civil and Human Rights, National Underground Railroad Freedom Center, Some analysts anticipate salary thresholds as high as. just days before it was set to take effect. Learn more by reading fact sheets that cover a variety of overtime topics. As we previously reported in our New Year's Update for 2022, the US Department of Labor (DOL's) regulatory agenda included proposed rulemaking on the Fair Labor Standards Act (FLSA) overtime rules by April 2022. Now, the DOL is considering a new overtime rule and the proposal is expected to hit this coming fall. Background on the new overtime proposal. President Joe Biden directed the DHS on Jan. 20, 2021, to take all appropriate actions to preserve and strengthen DACA, consistent with applicable law. A sign stands in front of the U.S. Department of Labor. The NPRM proposes a framework more consistent with longstanding judicial precedent on which employers have relied to classify workers as employees or independent contractors under the FLSA. Of note, in 2016, the Obama administration attempted to raise the salary basis threshold from $455/week to $921/week. Though it marked the first increase to the FLSA's overtime threshold in over a . The U.S. Department of Labor (DOL) had predicted it would issue its proposed new rule to overhaul the overtime regulations of the Fair Labor Standards Act in October, but we are still waiting for that proposal. The Internal Revenue Service has increased by three cents per mile, the optional standard mileage rates used to calculate the deductible costs of operating an automobile for business purposes. Review Administrator Interpretations, Opinion and Ruling Letters as well as pertinent chapters of the WHD Field Operations Handbook. Read on for everything you need to know. "If any of these issues make their way into new regulations in any significant way, litigation is assured.". Monday, November 7, 2022. The .gov means its official. We help organizations develop a comprehensive understanding of state laws and regulations to inform investment across people strategies and operations. Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. [CDATA[/* >