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|DoL Announces Proposed Rule to Revise and Clarify Joint Employer Arrangements
On April 1, 2019, the U.S. Department of Labor (DoL) announced a proposed rule to revise and clarify the responsibilities of employers and joint employers to employees in joint employer arrangements. The Department has not meaningfully revised its joint employer regulation since 1958.
In December 2018 ASA submitted comments on initial proposed revisions to the joint employer arrangement rules. We will review the new proposal from the DoL and if appropriate submit comments.
The Fair Labor Standards Act (FLSA) allows joint employer situations where an employer and a joint employer are jointly responsible for the employee's wages.
This proposal would ensure employers and joint employers clearly understand their responsibilities to pay at least the federal minimum wage for all hours worked and overtime for all hours worked over 40 in a workweek.
"This proposal will reduce uncertainty over joint employer status and clarify for workers who is responsible for their employment protections," said Secretary of Labor Alexander Acosta. "Providing public notice and comment is the best way to move forward with another significant deregulatory proposal."
In 2017, the Department withdrew the previous administrations sub-regulatory guidance regarding joint employer status that did not go through the rulemaking process that includes public notice and comment.
The DoL is proposing a four-factor test that would consider whether the potential joint employer actually exercises the power to:
"The proposal explains the statutory basis for joint liability, helping to ensure that the Department's joint employer guidance is fully consistent with the text of the FLSA," said Keith Sonderling, Acting Administrator for the Department's Wage and Hour Division. "The proposed changes would provide courts with a clearer method for determining joint employer status, promote greater uniformity among court decisions, and reduce litigation."
- Hire or fire the employee;
- Supervise and control the employee's work schedules or conditions of employment;
- Determine the employee's rate and method of payment; and
- Maintain the employee's employment records.
More information about the proposed rule is available at www.dol.gov/whd/flsa/jointemployment2019. The Department encourages any interested members of the public to submit comments about the proposed rule electronically at a www.regulations.gov, in the rulemaking docket RIN 1235-AA26. Once the rule is published in the Federal Register, the public will have 60 days to submit comments for those comments to be considered.
Readers can also visit the ASA Website for more background on this issue and ASA’s position.
- The Senate failed to pass a massive emergency aid bill for victims of hurricanes, wildfires, flooding and other natural disasters amid a fight between Democrats and President Donald Trump over relief for Puerto Rico's Hurricane Maria recovery. Democrats argue that the $600 million included for Puerto Rico's food stamp program is inadequate to meet the U.S. territory's needs and backed a House-passed relief bill, while Trump opposes sending any additional aid to Puerto Rico apart from food stamp money. (The Washington Post)
- In a 247-175 vote, the House sent a measure to Trump's desk that would end American involvement in the Saudi-led military campaign in Yemen. Trump is expected to veto the measure, with the White House citing "serious constitutional concerns," and Congress lacks the votes to override it. (The Associated Press)
- In a 263-158 vote, the House passed legislation to renew the Violence Against Women Act with new provisions that restrict gun ownership and expand transgender rights. The measure was opposed by the National Rifle Association, but 33 Republicans joined all but one Democrat to pass the measure.
- The Senate failed to pass a massive emergency aid bill for victims of hurricanes, wildfires, flooding and other natural disasters amid a fight between Democrats and Trump over relief for Puerto Rico's Hurricane Maria recovery. Democrats argue that the $600 million included for Puerto Rico's food stamp program is inadequate to meet the U.S. territory's needs and backed a House-passed relief bill, while Trump opposes sending any additional aid to Puerto Rico apart from food stamp money.
Rep. Matt Gaetz (R-Fla.) revealed a "Green Real Deal" resolution to address climate change, which would identify the phenomenon as a national security risk and call on the United States to support green energy innovation, modernize the electric grid and increase generation from hydropower and nuclear energy resources. The resolution does not set timelines for reducing carbon emissions, reading instead that the United States has successfully reduced those emissions in the last 10 years. (The Hill)
Oil, Gas and Biofuels
- The Environmental Protection Agency is waiting for the Department of Energy to provide input on 2018 applications from small refiners to waive their biofuel blending requirements, according to EPA Administrator Andrew Wheeler, who also told the House Appropriations Committee that he expected the department's input in the next couple of days. Wheeler added that processing all 39 outstanding requests for exemptions in 2018 within 90 days would be difficult but that the requests would be processed on a rolling basis. (Reuters)
- Larry Kudlow, the White House's top economic adviser, said President Donald Trump will soon sign another executive order intended to allow for more natural gas pipelines and for exports of liquefied natural gas.
- Environmental Protection Agency Administrator Andrew Wheeler told Senate appropriators that the agency would likely be unable to require waived biofuel volumes to be made up by larger refiners even if Congress were to mandate it by law. He also said the agency has lost across three lawsuits related to the exemptions it has granted to small refineries from biofuel blending requirements. (S&P Global Platts)
The House and Senate are in session this week.
- The House Energy and Water Development and Related Agencies Appropriations Subcommittee will hold its members' day hearing on Tuesday at 10 a.m., to hear about appropriators' spending priorities for fiscal 2020.
- The comment period for the federal government's revised "Waters of the United States" definition is set to close on April 15.
- Treasury Secretary Mnuchin testifies to House Financial Services Committee
- The Energy Subcommittee will hold a legislative hearing on Wednesday, April 10 at 10 am in the John D. Dingell Room, 2123 Rayburn House Office Building on a series of bills aimed at making Americans’ homes, buildings and energy infrastructure more efficient and cost-effective.
| || NEWS FROM STATE AND LOCAL |
Updates on State Activity Being Tracked
Colorado HB 19-1231 (2019A) New Appliance Energy and Water Efficiency Standards – approved by House with no amendments; introduced in Senate – Assigned to Transportation and Energy Committee.
Illinois HB 3658 (101st) APPLIANCE EFFICIENCY STANDARDS – Fiscal report has been filed.
Illinois HB 3445 (101st) LEAD SERVICE LINE REPLACEMENT – Added Co-Sponsor Rep. Elizabeth Hernandez
Hawaii HB 556 (2019 Regular Session) RELATING TO ENERGY EFFICIENCY - Reported from CPH (Stand. Com. Rep. No. 1863) with recommendation of passage on Third Reading, as amended (SD 2).
New State Activity
Wisconsin AB 148: Relating to: nitrate testing pilot program, granting rule-making authority, and making an appropriation; requires the Department of Health Services to award grants of up to $2,500 to eligible private well owners, which recipients must use to cover remediation costs with a primary purpose of providing potable water for human consumption to either a residential or nonprofit business property if the owner has a well that has nitrate levels exceeding ten parts per million.
The Colorado Senate voted along party lines, 19-16, to send legislation to Gov. Jared Polis (D) that would give more control to local governments for approving drilling sites and require the Colorado Oil and Gas Conservation Commission to prioritize public health and the environment over production in its decision-making. Polis is expected to sign the bill.
ConocoPhillips is in talks to sell a package of North Sea assets to explorer Chrysaor Holdings Ltd. after earlier discussions with U.K. billionaire Jim Ratcliffe collapsed, people with knowledge of the matter said.
An agreement would end a troubled sale process for the Houston-based company, which is divesting the oil fields as it turns its attention to U.S. shale exploration. Conoco opened up the bidding in January after efforts to sell the assets to Ratcliffe’s Ineos for as much as $3 billion failed.
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
A looming battle between President Donald Trump and Democrats over government spending and the debt limit could make the 35-day government shutdown look like a blip.
A series of budget deadlines converge in the coming months that could leave Washington on the precipice of another shutdown, $100 billion in automatic spending cuts and a full-scale credit crisis. And lawmakers are openly worried about stumbling over the edge.
The Washington Post
Citing differences over climate change, Royal Dutch Shell has pulled out of an industry trade group called the American Fuel and Petrochemical Manufacturers.
Shell said that it was at odds with the refining and petrochemical group on the Paris climate agreement, carbon pricing, fuel mandates and the reduction of methane emissions.
In Capitol Hill’s renewed push to take on big tech giants, companies like Amazon.com Inc. and Google are facing not just a potentially huge hit to their way of doing business — they are also risking reputational harm if any of the suggested regulations keep them from providing the services consumers have come to expect from them, experts say.
In terms of popularity, Amazon and Google have the most to lose, as they reign supreme in Morning Consult’s 2019 Most Loved Brands report, released Wednesday.
The International Code Council and NAHB recently released a new report designed to help builders improve the safety and satisfaction of their customers.
The “2019 Common Code Noncompliance Report” highlights for builders and remodelers the items code officials are most likely to flag in inspections and plan reviews during the construction process.
The National Law Review
On March 27, 2019, the U.S. House of Representatives voted to pass the Paycheck Fairness Act, an act designed to amend and strengthen the existing federal Equal Pay Act, 29 U.S.C. § 206(d). The Paycheck Fairness Act, which passed the House by a vote of 242-187 on a largely party-line basis, is sponsored by Representative Rosa DeLauro (D-CT), and would make sweeping changes to existing law.
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