Seyfarth Policy Matters Newsletter - January 9, 2020

Happy 2020! Welcome to the first edition of Policy Matters in this Presidential election year! Understandably, most of the Capitol’s attention has been focused on impeachment proceedings (or the lack thereof) and the conflict with Iran, but labor and employment issues continue to move in the background -- both on the Hill and at the agencies. So here’s our take on the DC L&E happenings for the first week of a new decade:

Is Congress Ready to Legislate? House Majority Leader Steny Hoyer (D-Md.) reportedly has announced that the Protecting Older Workers Against Discrimination Act (POWADA) (H.R. 1230) will get a vote on the House floor in the coming weeks. Proposed amendments are to be submitted to the Rules Committee this Friday, January 10. The bill has some bipartisan support in the House and Senate. For more on POWADA, see Seyfarth attorney Larry Lorber’s statement to the House Education and Labor Committee from earlier this year.

No, Seriously, We Might See A Bill Get Passed. The Pregnant Workers Fairness Act (H.R. 2694) is expected [subscription required] to be marked up in the House Education and Labor Committee next week. As you can imagine, the politics are very difficult surrounding this bill and there is a strong effort to reach a compromise to gain bipartisan support and address concerns of the business community--which certainly increases the likelihood that we will see significant movement. The bill as introduced, however, has some problems, as Seyfarth’s Ellen McLaughlin explained at the hearing last Fall.

WHD Continues with Compliance Assistance. Since the start of the Trump Administration, the Wage & Hour Division has issued more than 50 opinion letters under the FLSA and FMLA. Those letters address a wide variety of (usually) narrowly-focused issues. They are intended to answer the specific questions posed by the requestor and provide guidance on the issues to the entirety of the regulated community. This week, WHD issued three letters: one on calculating overtime pay, one on whether certain payments satisfy the salary basis test, and one on determining FMLA eligibility. For more on the FLSA letters, see Seyfarth’s Wage & Hour Litigation blog. 

And Also Its Enforcement Efforts. On the heels of its record-setting $332 million recovery of back wages in FY2019, WHD announced this week that it was staffing up. Wage & Hour investigators (45) and technicians (15) will be hired around the country, and are expected to be onboard by March 31. Investigators are WHD’s front line, conducting investigations to determine employers’ compliance with applicable laws (e.g., FLSA, FMLA, Davis-Bacon, Service Contract Act). Technicians support these efforts, receiving and evaluating incoming complaints, and assisting with the back wage distribution process.

New York Seeks to Eliminate Tip Credit for Many Workers. As states and localities around the country increase their minimum wages, one of the issues that is often addressed in tandem is the treatment of tip credit -- the ability of an employer to offset a portion of its minimum wage obligation using tips earned by employees. At the close of 2019, the New York Commissioner of Labor proposed elimination of the tip credit for employees in a variety of industries. See Seyfarth’s Legal Update for more.

Seyfarth’s Workplace Class Action Report Released. Much of what drives labor and employment policy inside the Beltway is related to the class action (and other) litigation filed inside and outside the Beltway in both the state and federal court systems. To help employers and policymakers better understand that landscape, this week, Seyfarth’s class action attorneys released the 16th Annual Workplace Class Action Litigation Report. The report provides a comprehensive analysis of the litigation issues and trends facing the nation’s employers.