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Proposal on president’s mandated FLSA updates may come in February

November 26th, 2014  |  Pamela Wolf

By Pamela Wolf, J.D.

The Department of Labor expects to issue a proposed regulation in February 2015 that will reflect President Obama’s directive to modernize and streamline FLSA regulations for executive, administrative, and professional employees, according to the DOL’s Fall 2014 Agency Rule List. Among other things, the agency also expects to finalize its rule on the FMLA’s definition of “spouse” by the end of March 2015, and by the end of July 2015, to publish a final rule narrowing the advice exemption in persuader agreement reporting requirements.

Regulatory revisions to FLSA exemptions. The DOL said that it expects to publish a proposed rule by the end of February 2015 titled, Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees. The FLSA, in Sec. 13(a)(1), provides a minimum wage and overtime exemption for employees who are employed in a bona fide executive, administrative, professional capacity, or in the capacity of an outside salesperson. In a March 13, 2014 memorandum, President Obama directed the Secretary of Labor to modernize and streamline existing overtime regulations for executive, administrative, and professional employees. These regulations were last updated in 2004.

FMLA definition of “spouse.” The DOL has proposed to revise the FMLA’s regulatory definition of “spouse” in light of United States v. Windsor, which struck down the provision in the Definition of Marriage Act that limited the definition of “marriage” to a man-woman union. The regulation will be finalized by the end of March 2015. The comment period on the proposed regulation ended on November 14. The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had taken leave. Leave may be taken, among other reasons, to care for the employee’s spouse who has a serious health condition.

Minimum wage for federal contractors. Consistent with a final rule published by the DOL on October 7, effective December 8, workers on certain new federal contracts with be entitled to a minimum wage of $10.10 an hour. Executive Order 13658 makes that minimum wage increase and indexes the wage rate to inflation thereafter. Consistent with the Executive Order, the DOL has issued implementing regulations.

Persuader agreements. The DOL said that it expects to issue a final rule by the end of July 2015 that revises its interpretation of Sec. 203(c) of the Labor-Management Reporting and Disclosure Act (LMRDA). An extended comment period on the proposed rule ended on September 21, 2011. Section 203(c) creates an “advice” exemption from reporting requirements that apply to employers and other persons related to persuasion of employees about their rights to organize and bargain collectively. The revised interpretation would narrow the scope of the advice exemption.

The DOL also hopes to issue in July 2015 a notice and comment rulemaking that would make electronic filing mandatory for the Consultant Form LM-21, Receipts and Disbursements Report, which is required under Sec. 203(b) of LMRDA. The agency also intends to review the layout of the Form LM-21 and its instructions, including the detail required to be reported.

Both of these persuader-agreement related proposals were previously slated for action in December 2014.

Labor organization annual reports. Another DOL proposed rule slated for release in November 2015 would make electronic filing mandatory for the Form LM-3 and LM-4 Labor Organization Annual Reports. This action was previously scheduled for December 2014. Labor organizations covered by the LMRDA and similar statutes must file annual financial disclosure reports with the DOL’s Office of Labor-Management Standards (OLMS). Currently, the largest labor organizations (with $250,000 or more in total annual receipts) file the Form LM-2, which requires filers to submit the report electronically. The proposed rule would require smaller labor organizations, which file either the Form LM-3 and LM-4 Labor Organization Annual Reports, to also submit their reports electronically.