Federal News & Analysis

  • DOL secretary takes heat over controversial tip-pooling rule

    One of the more unpopular rules promulgated by the U.S. Department of Labor (DOL) under President Barack Obama was the 2011 tip-pooling regulation that provided employees "who customarily and regularly receive tips," such as waiters and busboys, cannot be required to share their tips. On December 4, 2017, the DOL's Wage and Hour Division (WHD) released a proposed rule to rescind the 2011 regulation and allow employers to require front-of-house employees (e.g., waiters) to share their tips with back-of-house employees (e.g., dishwashers). DOL Secretary Alexander Acosta indicated the limited nature of the rule by stating: "Our proposal only applies where an employer pays a full minimum wage and does not take the tip credit." The comment period closed on February 5, 2018.

  • Combating the substance abuse epidemic through employee benefit programs

    Although the prevalence of drug and alcohol addiction among Americans has been no secret, the rapid ascent of the opioid epidemic in recent years has thrust the issue of substance abuse back into the public eye. In addition to the damage addiction causes individuals and their families, the estimated economic costs of employee substance abuse—a staggering $442 billion in annual losses due to decreased worker attendance, lower productivity, and poor health—have grown into a financial leviathan for employers. But because nearly 16 million (75 percent) of the estimated 21 million Americans who suffer from addiction are part of the workforce, two particular types of benefit programs, if more widely adopted and utilized, could play a meaningful role in combating a disorder that many consider to have reached "epidemic" status.

  • NLRB inspector general finds Emanuel should have recused himself from case

    David Berry, the National Labor Relations Board's (NLRB) inspector general (IG), recently found that William Emanuel should have recused himself from the NLRB's recent decision reversing the Obama Board's joint-employer standard set out in Browning-Ferris Industries because his firm represented a contractor for Browning-Ferris. The IG stated in a memorandum to the NLRB that the decision in Hy-Brand Industrial Contractors Ltd. was a direct continuation of Browning-Ferris and Emanuel's participation in the case "exposes a serious and flagrant problem and/or deficiency" in the Board's process for recusal. According to Berry, Emanuel's participation in the Hy-Brand decision when he should have been recused calls into question the validity of the decision and undercuts stakeholders' confidence in the NLRB's ability to perform its statutory duties.

  • Justice Department limits use of guidances

    In a startling change of legal practice, the U.S. Department of Justice (DOJ) has issued a memorandum stating that it will no longer use its "guidance documents to coerce regulated parties into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or lawful regulation." The intended breadth of the DOJ's instruction is clear: It applies to any civil lawsuits filed on behalf of the federal government to "impose penalties for violations of federal health, safety, civil rights or environmental laws."

  • EEOC's proposed FY 2019 budget maintains agency's funding level

    The Equal Employment Opportunity Commission's (EEOC) proposed budget for fiscal year (FY) 2019 would slightly reduce the EEOC's funding, continuing a recent trend of flat funding for the agency. The EEOC has requested $363.8 million; if its request is approved, it would be the fourth time the agency's budget hasn't increased.

  • USCIS to begin processing H-1B petitions April 2

    U.S. Citizenship and Immigration Services (USCIS) will begin processing fiscal year 2019 H-1B petitions on April 2, 2018. Immigration attorneys expect that USCIS will receive more petitions than the 85,000 available for the fiscal year, which includes 20,000 set aside for holders of U.S. master's degrees and 65,000 for everyone else. When demand exceeds supply, USCIS has in the past conducted a lottery of the petitions it receives during the first five business days of April. Holders of U.S. master's degrees who are not selected in the master's lottery get another chance in the lottery for the remaining 65,000 slots, thus increasing the chances of success for candidates who earned graduate degrees in the United States.

  • OFCCP director sets positive tone in meetings with stakeholders

    On January 30 and 31, 2018, the recently appointed director of the Office of Contract Compliance Programs (OFCCP), Ondray T. Harris, and members of his senior staff held three listening sessions with three groups of stakeholders—federal contractors, civil rights groups, and contractor organizations. During the meetings, Harris focused on opening a dialogue with OFCCP stakeholders and helping contractors comply with the agency's requirements. Senior adviser Craig Leen and Debra Carr, director of the OFCCP's Division of Policy and Program Development, joined Harris in the meetings.

  • Impact of #MeToo on mandatory arbitration, nondisclosure agreements

    Approximately 60 million Americans are subject to mandatory arbitration clauses, which employers often favor because arbitration tends to be more employer-friendly and less expensive than litigation, and less likely to attract attention from the media. Opponents claim that mandatory arbitration with an accompanying nondisclosure agreement unfairly protects wrongdoers by silencing victims and preventing them from taking their cases to court. In fact, many of the women who came forward as a result of #MeToo risked legal exposure because they had signed confidentiality or nondisclosure agreements after settling sexual harassment or assault claims.The use of nondisclosure agreements by alleged sexual predators has caused Congress and state legislatures to rethink employers' use of nondisclosure agreements, especially in cases of sexual harassment or assault.

  • Leave and the ADA: Is there a limit?

    There is perhaps no more difficult decision for an employer to make under the Americans with Disabilities Act (ADA) than reaching the conclusion that a requested leave is unreasonable. In most instances, the decision arises in the context of a long leave that extends well beyond the limits of the Family and Medical Leave Act (FMLA).

  • DOL revives 17 opinion letters that were withdrawn in 2009

    On January 5, 2018, the U.S. Department of Labor (DOL) announced that it would reissue 17 opinion letters that were signed during the last days of George W. Bush's administration but subsequently withdrawn in March 2009 for "further consideration."