Labor & Employment Law Daily Pay data survey, joint-employer standards on EEOC regulatory agenda
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Monday, December 14, 2020

Pay data survey, joint-employer standards on EEOC regulatory agenda

By Pamela Wolf, J.D.

The Fall 2020 regulatory agenda also lists consideration of an NLRB rule on access to employers’ private property, a DOL rule revising FMLA regulations, and an OSHA update to emergency response standards.

The fall regulatory agenda for federal agencies was published on December 9, 2020. Among other things, the rule list for the Equal Employment Opportunity Commission, the National Labor Relations Board, and the Department of Labor reveals several pre-rule stage items of notable interest.

At the EEOC. The EEOC’s Rule List – Fall 2020 indicates that, among other things, the Commission is contemplating a pay data survey. It also is working on regulatory revisions related to employer wellness programs, the definition of the employment relationship, and “official time” for federal employees.

Pay data survey. The Commission is contemplating amendments to its regulations that would provide for a pay survey (3046-AB15), under which employers would submit pay data or related information as reasonable, necessary, or appropriate for the enforcement of Title VII the Equal Pay Act. In an advance notice of proposed rulemaking (ANPRM) currently slated for October 2021, the EEOC would seek public comment on the potential benefits to its enforcement of antidiscrimination laws, appropriate methods of collecting pay data, and burdens on respondents to collect and report pay data or related information under proposed alternatives, as well as other alternatives suggested by commenters.

Wellness program regulations. Proposed amendments under the EEOC’s ADA regulations (3046-AB10) would address the interaction between the ADA and wellness programs, which had been published as a final rule on May 17, 2016 (81 FR 31125) and completed in the fall 2016 agenda (RIN 3046-AB01). On August 22, 2017, however, a federal court in the District of Columbia ordered the EEOC to reconsider this final rule on employer-sponsored wellness (AARP v. EEOC). The EEOC thus rescinded portions of its ADA wellness rule on December 20, 2018 (83 FR 65296).

Also in response to the court’s order, proposed GINA regulations (3046-AB11) would amend a final rule issued May 17, 2016 (81 FR 31143) and completed in the fall 2016 agenda (RIN 3046-AB02).

Notices of proposed rulemaking (NPRM) under both statutes had been expected in November 2020.

Joint employment relationships. At the proposed rule stage, the EEOC is also working on regulations that would explain how the EEOC analyzes the common law agency standard for determining whether an entity and a worker are in an employment relationship, and whether two entities are joint employers for purposes of Title VII, the ADA, the Rehabilitation Act, GINA, and the ADEA (3046-AB16).

Similarly, the EEOC is working on regulatory amendments that would explain the Commission’s interpretation of joint employer status under the EPA, which incorporates the definitions of “employee,” “employer,” and “employ” under the FLSA.

Both NPRMs also were expected in November 2020.

“Official time.” Similarly, the EEOC expected to finalize in November 2020 its regulation entitled Official Time in the Federal Sector Equal Employment Opportunity Process (3046-AB00). In 2019, the EEOC issued a NPRM to amend its rule on the use of official time by federal employees who represent others in the federal-sector EEO process, and to clarify that it does not apply to representatives who serve in an official capacity in a labor organization that is the exclusive representative of federal employees in an appropriate unit. This change would clarify that whether official time is available to federal union representatives in an EEO complaint would be determined by the relevant federal labor relations statute and terms of applicable collective bargaining agreements, not the agency’s EEO office.

Labor Board. At the NLRB, the agency’s Rule List includes four items:

  • Access Rule (3142-AA14) at proposed rule stage. The proposed rule would establish the standards under the NLRA for access to an employer’s private property, with the NPRM expected in December 2020.
  • Revision of Representation Case Rules (3142-AA18) at proposed rule stage. The proposed rule would specifically focus on further amendments to the procedures for conducting representation elections under the Board’s representation case procedures. The NPRM is expected in February 2021.
  • Student/Employee Status (3142-AA15) in the final rule stage. The rule would establish the standard for determining whether students who perform services at a private college or university in connection with their studies are “employees” within the meaning of Section 2(3) of the NLRA. This final rule is slated for January 2021.
  • Revision of Representation Case Rules (3142-AA17) in the final rule stage. The rulemaking would revise representation election regulations, with a final rule expected in February 2021.

Labor Department. The DOL’s extensive Rule List includes notable rulemaking endeavors at the Wage and Hour Division, the Employee Benefits Security Administration, Office of Federal Contract Compliance, and OSHA, including the following.

WHD-The Family and Medical Leave Act of 1993 (1235-AA30) at pre-rule stage. In this Request for Information (RFI), the DOL has solicited comments on ways to improve its regulations under the FMLA to better protect and suit the needs of workers, and to reduce administrative and compliance burdens on employers. The DOL expected to analyze comments in November 2020.

WHD-Tip Regulations Under the FLSA (1235-AA21) at final rule stage. In the FY 2018 Consolidated Appropriations Act, Congress amended multiple FLSA provisions on employers’ use of employees’ tips and provided that portions of the DOL’s 2011 rule on tips shall have no further force or effect until any future action taken by the DOL. The DOL proposed to align its regulations with the recent statutory changes. The DOL also proposed to revise the existing “dual jobs” regulation to provide greater clarity, consistent with current guidance, on an employer’s ability to take a tip credit to satisfy minimum wage obligations for time spent by a tipped employee performing duties that are related to the employee’s tipped occupation. This final rule also was expected in November 2020.

WHD-Independent Contractor Status Under the FLSA (1235-AA34) at final rule stage. The proposed regulation would determine independent contractor status under the FLSA. The existing test assesses workers’ economic dependence on a potential employer and, as often articulated by courts and the DOL, raises these concerns that have become more apparent in the “modern” economy: (1) the core concept of economic dependence remains vague and under-developed; (2) the test lacks guidance about how to balance the multiple factors; and (3) the lines between many of the factors are blurred. The final rule is expected in December 2020.

At EBSA. At EBSA, among other things, the agency is in the process of finalizing its Pension Benefit Statements-Lifetime Income Illustrations (1210-AB20) rule that would implement Section 203 of the Setting Every Community Up for Retirement Enhancement Act of 2019, which amended Section 105 of ERISA, to add a lifetime income illustration to pension benefit statements furnished to participants in certain defined contribution plans. The interim final rule comment period ended November 17, 2020; analysis of comments is expected in April 2020.

OSHA. OSHA is in the process of considering updates to its emergency response standards (1218-AC91), some of which were promulgated decades ago, and none of which were designed as comprehensive emergency response standards. As such, they do not address the full range of hazards or concerns currently facing emergency responders and other workers providing skilled support, nor do they reflect major changes in performance specifications for protective clothing and equipment. OSHA has acknowledged that current OSHA standards also do not reflect all the major developments in safety and health practices that have already been accepted by the emergency response community and incorporated into industry consensus standards. OSHA is considering updating these standards with information gathered through an RFI and public meetings.

These pre-rule stage regulatory actions at OSHA are also of particular interest:

  • Mechanical Power Presses Update (1218-AC98). The current OSHA standard on mechanical power presses does not address the use of hydraulic or pneumatic power presses. Moreover, the standard is about 40 years old and does not address technological changes. OSHA previously published an ANPRM on Mechanical Power Presses (June 2007) in which it identified several options for updating this standard. The RFI was expected in November 2020.
  • Prevention of Workplace Violence in Health Care and Social Assistance (1218-AD08). The RFI published on December 7, 2016, (81 FR 88147) solicited information primarily from health care employers, workers, and other subject matter experts on impacts of violence, prevention strategies, and other information that will be useful to the agency. OSHA was petitioned for a standard preventing workplace violence in health care by a broad coalition of labor unions, and in a separate petition by the National Nurses United. On January 10, 2017, OSHA granted the petitions.
  • Blood Lead Level for Medical Removal (1218-AD10). OSHA is seeking public input to help identify possible areas of the lead standards for revision to improve worker protections in industries and occupations where preventable exposure to lead continues to occur. The current standards allow an employee to return to former job status at a blood lead level (BLL) below 40 µg/dL. Recent medical findings indicate that lower blood lead levels in adults can result in adverse health effects including hypertension, cognitive dysfunction, and effects on renal function. These and other health effects (adverse female reproductive outcomes) are being identified in individuals with BLLs under 40 µg/dL. HHS, the Council of State and Territorial Epidemiologists, and California’s Medical Management recommends that BLLs among all adults be reduced to less than 10 µg/dL. An ANPR was expected in November 2020.

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