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Craig Brightup, the Brightup Group
|DOL Proposes Update to Salary-Level Test
On March 7, the U.S. Dept. of Labor (DOL) released a proposed regulation to update the salary-level test for determining when a “white collar” employee is exempt from earning overtime. The Obama Administration issued a regulation in 2016 that would have doubled the salary level from $23,660/year ($455/week) to $47,476/year ($913/week), but it was halted by a federal judge in a challenge led by the U.S. Chamber of Commerce on the basis that the threshold was so high it made the duties test no longer relevant and thus was beyond the statutory authority of the Secretary of Labor. That decision is currently on appeal in the 5th Circuit while the Trump Administration proposes a more modest update to the overtime regulation, which was last adjusted in 2004.
The proposed rule raises the threshold to $35,308/year ($679/week) and, as advocated by business, reverts to methodology used in the 2004 rule that focused on the 20th percentile of full-time wage earners in the lowest income region of the country (identified as the South) and the retail industry. It also makes no changes to the duties tests and has no auto-update feature, both of which are key points for business. However, the regulation does seek comments on conducting regularly scheduled rulemakings to update the salary threshold.
With regard to what constitutes “regular rate” of pay for purposes of calculating overtime compensation, the proposed rule would allow nondiscretionary bonuses and incentive payments (including commissions) paid at least annually to satisfy up to 10 percent of the standard salary test requirement. Such bonuses include, for example, nondiscretionary incentive bonuses tied to productivity and profitability.
One area business might question is the proposed rule’s increase in the total annual compensation requirement for “highly compensated employees” (HCE) from the current salary level of $100,000 to $147,414 per year, which is higher than the Obama DOL’s threshold of $134,004. Trump’s DOL kept the methodology used by the Obama Administration for this salary level which resulted in the higher threshold. However, most key elements of the proposed rule are more business friendly than the Obama-era rule and consistent with many of the points made by the Chamber and other business groups throughout DOL’s Listening Sessions and Request for Information (RFI) process.
Comments will be due 60 days from the date the proposal is published in the Federal Register, which should put the deadline in the first or second week of May. The ASA GA/PAC Committee will be reviewing the proposed rule changes with consideration of submitting comments. Please contact Jim Kendzel, ASA Vice President of Advocacy at firstname.lastname@example.org if you have specific concerns you would like the ASA GA/PAC Committee to consider.
Note: additional information on this subject can be found on the ASA webpage.
Special counsel Robert Mueller's investigation into Russian meddling in the 2016 election found no evidence that President Donald Trump or his campaign aides conspired with Moscow and drew no conclusions about whether Trump obstructed justice, according to a summary by Attorney General William Barr. Trump touted the news as "a complete and total exoneration," while Democrats in Congress are already pressing the Justice Department to hand over more information, including the special counsel's investigative files. (The New York Times)
- The US EPA announced in the Federal Register a proposal to make regulatory changes to allow gasoline blended with up to 15 percent ethanol to take advantage of the 1 psi Reid Vapor Pressure (RVP) waiver that currently applies to E10 during the summer months. Comments on proposed change must be received by April 29, 2019.
- Sens. Thom Tillis (R-N.C.), Susan Collins (R-Maine) and Lamar Alexander (R-Tenn.) and three Democrats told Environmental Protection Agency Administrator Andrew Wheeler in a letter to withdraw the agency's proposed changes to regulations limiting emissions of mercury and other pollutants from coal-fired power plants. Collins voted against Wheeler's nomination to lead the agency, and both Collins and Tillis face difficult re-election fights in 2020.
- Republican lawmakers made clear that many of the cuts to federal energy and environmental programs that the Trump administration has proposed will not be enacted in fiscal 2020, including the suggested $2 billion reduction in Environmental Protection Agency funding and the zeroing-out of the Energy Department's Advanced Research Projects Agency-Energy program. Additionally, Rep. Mike Simpson (R-Idaho) said that following Democrats' assumption of the House majority, the legislation that appropriators produce is "going to be more in the Democratic mold." (Bloomberg BNA)
- President Trump said the United States will keep tariffs on Chinese goods for a "substantial period of time," even after a trade deal. The two countries are preparing for a fresh round of face-to-face negotiations about the tariff rollback, as well as enforcement and technology issues. (The Wall Street Journal)
- Last week, the Department of Labor (DOL) Wage and Hour Division (WHD) issued its first three opinion letters of 2019 concerning the Family Medical Leave Act (FMLA) and Fair Labor Standards Act (FLSA). (National Law Review)
The House and Senate are in session this week.
- The House is set to vote on whether to override Trump's veto of a resolution disapproving of his declared national emergency on the southern border.
- House Appropriations subcommittees will take a look at various aspects of the Trump administration's budget request, including for the Interior Department, Energy Department and National Science Foundation.
| || NEWS FROM STATE AND LOCAL |
Recent Activity on Legislation Being Tracked:
- RI SB 713: an act relating to property and works - labor and payment of debts by contractors (Requires builders on state public school contracts $5,000,000 or more to have 15% of the labor performed by apprentices, and sets forth other consequential requirements for such contracts.)
- RI SB 658: an act relating to state affairs and government – Rhode Island global warming solutions act. Establishes the Rhode Island global warming solutions act to reduce carbon emissions across various sectors of the local economy.
- NV AB 392: Encourages employers to provide work-based learning opportunities for pupils. (BDRÂ 34-952)
- IL HB 3658: appliance efficiency standards has had recent activity: Placed on Calendar 2nd Reading - Standard Debate.
- HI HB 556: relating to energy efficiency has had recent activity. Reported from EET (Stand. Com. Rep. No. 1385) with recommendation of passage on Second Reading, as amended (SD 1) and referral to CPH.
- WI AB 45: Relating to: creating individual and corporate income and franchise tax deductions for tuition paid for apprenticeship programs. (FE) has had recent activity: Fiscal estimate received.
- NC HB 330: Efficient Government Buildings & Savings Act has had recent activity: Re-ref Com On Energy and Public Utilities.
- WA HB 1444: Concerning appliance efficiency standards has had recent activity: Executive action taken in the Senate Committee on Environment, Energy & Technology at 10:00 AM.
- CT HB 7151: an act concerning energy efficiency standards has had recent activity: FILED WITH LCO.
- IL HB 3445: lead service line replacement has had recent activity: To Commerce and Innovation Subcommittee.
Morning Consult is setting a new standard for survey research. On a daily basis, Morning Consult interviews over 5,000 registered voters across the United States. Along with 2020 presidential election data, Political Intelligence tracks the approval and electability for all governors, senators, House members, the President, and more at the national, state, and congressional district level. Each week, this report will use that data to deliver key new insights on where voters stand.
The White House plans to drop the word “acting” from Mick Mulvaney’s title, officially making him President Donald Trump’s third chief of staff, according to four current and former senior administration officials.
It’s a recognition that Mulvaney has successfully navigated a tumultuous West Wing.
A rally in equities sputtered out after a report that U.S. and Chinese negotiators remain at odds on aspects of their current trade talks. Treasury yields narrowed and Texas crude declined.
The S&P 500 Index ended the session little changed Tuesday on word that Trump administration officials are concerned that China is pushing back against U.S. demands. Earlier in the session, the benchmark had topped 2,850 for the first time since October.
The New York Times
The Business Roundtable, the top lobbying organization for industry in Washington, is often characterized as a nonpartisan or bipartisan organization.
It represents more than 200 large companies — from oil giants to tech sweethearts — with more than $7 trillion of revenue and more than 15 million workers of all political stripes.
Sen. Mitt Romney (R-Utah), who is emerging as a pragmatic leader among Senate Republicans, is at the center of private discussions among GOP senators about crafting a legislative response to climate change.
Senate Democratic Leader Charles Schumer (N.Y.) has tried to put the focus on Senate Republicans for not having a plan to combat global warming, which has been linked to erratic weather events costing American communities billions of dollars in damages.
The National Law Review
The law appears to provide that any “non-disclosure provision” in any employment contract or settlement concealing the details related to discrimination, retaliation or harassment is unenforceable. This law does not apply retroactively. So all agreements previously signed remained in force. It is unclear how this will affect non-disparagement clauses in settlements moving forward.
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