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Reducing Compliance Costs, Enforcement Priorities For DOL in 2020

One of the major priorities of the Trump administration's Department of Labor has been deregulation. The purpose of much of the deregulation is to reduce the cost of legal compliance for employers. At the same time, the DOL still plans robust enforcement of the law, according to the Solicitor of Labor. Other priorities include community outreach, helping employers comply with the law, and ensuring that workers know their rights.

The Society for Human Resources Management obtained seven 2020 Labor Department priorities from the solicitor and the administrator of the Wage and Hour Division:

Online retirement plan disclosures. Allowing employers to provide retirement plan disclosures online rather than by mail could save employers a lot of money: about $2.5 million over the next 10 years. Allowing this would require changes to the rules around ERISA.

Encouraging apprenticeship. A new rule proposed in June would help close the skills gap by expanding apprenticeships. Industry-recognized programs would be established and made available to certified industry groups, unions, schools and nonprofits. These programs would still have to meet current standards for apprenticeship programs that are regulated by the Labor Department.

Clarifying when business are joint employers. When companies exert significant control over their contractors or franchisees, they can sometimes be held liable as a joint employer. A new proposal would institute a multi-factor test to determine when businesses are joint employers.

Expanding tip-sharing. In October, the DOL announced a rule that would make it easier for employers to require tip-sharing between "front-of-the-house" and "back-of-the-house" employees who haven't traditionally received tips. Employers would be prohibited from keeping the tips.

Defending the overtime salary threshold. In September, the DOL issued a final rule setting a salary threshold to help determine which employees are entitled to overtime. Under the new rule, anyone making less than $35,568 is considered non-exempt, or entitled to overtime, regardless of other considerations. The rule also raised the salary threshold to be considered a highly compensated employee and not eligible for overtime.

Changing the 'regular rate' definition for overtime pay. Under the Fair Labor Standards Act, workers are entitled to 1.5 times their regular rate of pay as the overtime premium rate. Just what should be considered in the regular rate of pay can be hard to determine, as it includes wages, nondiscretionary bonuses, shift differentials, commissions and on-call pay but excludes many benefits, paid leave and discretionary bonuses. The DOL has proposed clarifying these rules.

Updating the 'fluctuating workweek' method of calculating overtime. The FLSA requires overtime to be paid whenever a worker works more than 40 hours in a given workweek. The exact definition of a workweek, however, could be more flexible under a new DOL proposal.

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