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November 10, 2016 Page 1
Key Labor, Employment, and Immigration, Regulatory Initiatives
in the Obama Administration
The following is a summary of key regulatory actions, completed, underway, or anticipated, in
which the Chamber has been, or plans on being, actively engaged.
Table of Contents
Key Labor, Employment, and Immigration, Regulatory Initiatives in the Obama
Administration .............................................................................................................................. 1
Labor and Employment Related Regulatory Activity ............................................................... 6 Executive Orders ..................................................................................................................... 6
Establishing a Minimum Wage for Contractors ...................................................................... 6
Non-Retaliation for Disclosure of Compensation Information ............................................... 6
Further Amendments to Executive Order 11478, Equal Employment Opportunity in the
Federal Government and Executive Order 11246, Equal Employment Opportunity .............. 7
Fair Pay and Safe Workplaces Executive Order ..................................................................... 8
Executive Order Establishing Paid Sick Leave for Federal Contractors ............................... 14
Presidential Memoranda ....................................................................................................... 17
Updating and Modernizing Overtime Regulations ................................................................ 17
Achieving Pay Equality Through Compensation Data Collection ........................................ 18
Completed Rulemakings ........................................................................................................ 19
Representation-Case Procedures (Ambush Elections-Part I) ................................................ 19
Representation-Case Procedures (Ambush Elections II) ....................................................... 20
November 10, 2016 Page 2
Family and Medical Leave Act, as Amended ........................................................................ 22
Systemic Compensation Discrimination Under Executive Order 11246 and Voluntary
Guidelines for Self-Evaluation .............................................................................................. 22
Revising “Companionship” Exemption to the Fair Labor Standards Act ............................. 22
OSHA Recordkeeping Update from SIC codes to NAICS codes; reporting of
hospitalizations and amputations ........................................................................................... 23
OFCCP Scheduling Letter and Itemized Listing ................................................................... 24
FAR Regulation: Ending Trafficking in Persons .................................................................. 25
Employer and Consultant Reporting Under the LMRDA’s Persuader Regulations ............. 26
OSHA Revised Silica Standard ............................................................................................. 27
OSHA Injury and Illness Reporting Regulation .................................................................... 28
Workplace Wellness Programs and Employment Discrimination ........................................ 29
Sex Discrimination Guidelines for Federal Contractors ........................................................ 31
EEOC’s Changes to the EEO1-Form .................................................................................... 31
Rulemakings Underway ......................................................................................................... 32
Adding New Column to Track Ergonomic Injuries Under OSHA Injury Logs .................... 32
Genetic Information Nondiscrimination – Title I Regulation of Health Risk Assessments . 33
Compensation Data Collection Tool ..................................................................................... 33
Treasury Department Acquisition Regulations Proposed Contracting Language for Minority
and Women Inclusion under Dodd-Frank Act ...................................................................... 34
Worker Classification Survey ................................................................................................ 35
Chemical Management and Permissible Exposure Limits .................................................... 35
Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate
Record of Each Recordable Injury and Illness (Volks) ......................................................... 35
Department of Labor Inflation Adjustment Act Catch-Up Adjustments for Penalties ......... 36
Anticipated Rulemakings ....................................................................................................... 36
Hours Worked Under the Fair Labor Standards Act ............................................................. 36
Revocation of Obsolete Permissible Exposure Limits (PELs) .............................................. 36
Significant Non-Regulatory Activities....................................................................................... 37 Department of Labor ............................................................................................................. 37
Proposed Interpretation of “Feasible” Under OSHA’s Noise Exposure Standard ................ 37
OSHA Memo on Whistleblowers and Employer Safety Incentive Programs ....................... 37
November 10, 2016 Page 3
OSHA Letter of Interpretation Permitting Union Representatives to Accompany an OSHA
Inspector at Non-Union Workplaces ..................................................................................... 38
Changes to Strategic Partnership Programs........................................................................... 38
informACTION App Challenge (WHD and OSHA) ............................................................ 38
Persuader Reporting Orientation Program (OLMS) .............................................................. 39
U-VISA Determinations (WHD) ........................................................................................... 39
Memorandum of Understanding for Employee Misclassification Initiative (WHD) ............ 39
Aggressive Strategic Plans (OFCCP) .................................................................................... 40
Guidance on the Applicability of the Worker Adjustment and Retraining Notification Act to
layoffs that may occur among Federal Contractors, including in the Defense Industry as a
Result of Sequestration (ETA) .............................................................................................. 40
Complying with Nondiscrimination Provisions: Criminal Record Restrictions (OFCCP) ... 40
OFCCP Procedures for Reviewing Contractor Compensation Systems and Practices
(OFCCP) ................................................................................................................................ 40
Calculating Back Pay as Part of Make-Whole Relief for Victims of Employment
Discrimination (OFCCP) ....................................................................................................... 41
Agricultural Workers (WHD) ................................................................................................ 41
Memo on Implementation of the President’s Executive Order on Fair Pay and Safe
Workplaces ............................................................................................................................ 41
Administrator’s Interpretation No. 2015-1, Independent Contractor Status (WHD) ............ 41
Administrator’s Interpretation No. 2016-1, Joint Employment under the Fair Labor
Standards Act and Migrant and Seasonal Agricultural Worker Protection Act (WHD) ....... 42
Form LM-21 Special Enforcement Policy (OLMS) .............................................................. 42
Mega Construction Project Program (OFCCP) ..................................................................... 42
Equal Employment Opportunity Commission ....................................................................... 43
Credit and Criminal History Background Checks ................................................................. 43
Religious Garb and Grooming in the Workplace .................................................................. 43
Enforcement Guidance on Pregnancy and Related Issues ..................................................... 43
American with Disabilities Act Enforcement ........................................................................ 44
Proposed Enforcement Guidance on Retaliation and Related Issues .................................... 44
Addendum to the Revised Memorandum of Understanding between the Departments of
Homeland Security and Labor Concerning Enforcement Activities at Worksites ................ 44
Proposed Enforcement Guidance on National Origin Discrimination .................................. 44
November 10, 2016 Page 4
National Labor Relations Board ........................................................................................... 44
Protected Concerted Activity Website .................................................................................. 44
Memorandum of Understanding with Justice Department .................................................... 44
Letter of Agreement Between The Office of General Counsel and the Ministry of Foreign
Affairs of Mexico .................................................................................................................. 45
Addendum to the Revised Memorandum of Understanding between the Departments of
Homeland Security and Labor Concerning Enforcement Activities at Worksites ................ 45
Immigration Regulatory Activity .............................................................................................. 46 Completed Rulemakings ........................................................................................................ 46
H-2B Program Rule and Wage Methodology ....................................................................... 46
I-9 Employment Eligibility Verification ............................................................................... 48
Automation of Form I-94 Arrival/Departure Record ............................................................ 48
H-4 Spousal Work Authorization .......................................................................................... 49
Updating Immigration Procedures for Consistency in E-3, H-1B1, CW-1, and EB-1
Processing .............................................................................................................................. 50
Reinstate and Expand the STEM Optional Practical Training Extension ............................. 50
U.S. Citizenship and Immigration Services Fee Schedule .................................................... 51
Rulemakings Underway ......................................................................................................... 52
Labor Condition Application (ETA 9035) for H-1B Petitions .............................................. 52
Asia-Pacific Economic Cooperation (APEC) Business Travel Card .................................... 53
Notice of Request For Information ........................................................................................ 53
E-Verify Final Non Confirmation Review Process and New Reverification Obligation
(USCIS) ................................................................................................................................. 53
Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements
Affecting Highly-Skilled H-1B Alien Workers (USCIS)...................................................... 54
Department of Homeland Security and Department of Labor Federal Civil Penalties
Inflation Adjustment Act Catch-Up Adjustments for the H-2B Temporary Non-Agricultural
Worker Program .................................................................................................................... 54
Standards and Procedures for the Enforcement of the Immigration and Nationality Act ..... 54
Significant Public Benefit Parole for Entrepreneurs (USCIS) .............................................. 55
Anticipated Rulemakings ....................................................................................................... 55
Procedural and Technical Employment Verification (I-9) Violations (ICE) ........................ 55
November 10, 2016 Page 5
Nonimmigrant Classes: Temporary Visitors to the United States for Business or Pleasure
(CBP) ..................................................................................................................................... 56
Implementation of Amendments Affecting Petitions for Employment Creation for Aliens
(USCIS) ................................................................................................................................. 56
Improvement of the Employment-Creation (EB-5) Immigration Regulations (USCIS) ...... 56
Department of Labor- Labor Certification for Permanent Employment of Foreign Workers
in the United States; Revising Schedule A ............................................................................ 56
Labor Department – PERM Modernization Efforts .............................................................. 56
Significant Non-Regulatory Activities....................................................................................... 57 Department of Homeland Security ........................................................................................ 57
L-1B Adjudication Policy (USCIS) ....................................................................................... 57
H-1B Adjudication Policy (USCIS) ...................................................................................... 57
November 10, 2016 Page 6
Labor and Employment Related Regulatory Activity
Executive Orders
Establishing a Minimum Wage for Contractors
On February 12, 2014, President Obama signed an Executive Order, entitled “Establishing a
Minimum Wage for Contractors” that raises the wages paid by federal contractors with service
and construction contracts to $10.10 per hour. The Executive Order also applies to
subcontractors of federal contractors and companies with concession agreements on federal
properties or leasing space in federal buildings. The E.O. also specified that workers who are
merely supporting the covered contracting activity would be covered. The new minimum wage
requirements will be effective January 1, 2015, for new and renewed contracts and the minimum
wage will be increased each year by an inflation based adjustment.
On June 17, 2014, the Department of Labor promulgated the proposed rule to implement the
requirements of the Executive Order.
On July 28, 2014, the Chamber submitted comments, which may be accessed here:
https://www.uschamber.com/comment/joint-comments-proposed-regulations-establishing-
minimum-wage-contractors
On October 7, 2014, the Department of Labor issued final regulations. The rules became
effective beginning December 5, 2014. Among other things, the final regulations create a new
notice posting requirement; impose two additional recordkeeping requirements for contractors
(the requirement to maintain records reflecting each worker’s occupation (s) or classification (s)
and the requirement to maintain records reflecting total wages paid); and provides an exemption
for workers performing in connection with covered contracts for less than 20 percent of their
work hours in a given workweek as long as the contractor segregates the hours worked in
connection with the covered contract from other work not subject to the Executive Order for that
worker. However, none of the problems in the proposed regulation, with respect to coverage of
vendors on federal property or which employees must be included, were cured.
Non-Retaliation for Disclosure of Compensation Information
On April 8, 2014, President Obama signed an Executive Order, entitled “Non-Retaliation for
Disclosure of Compensation Information” which amends Executive Order 11246 to provide that
federal contractors shall not discriminate against employees or applicants that share
compensation data. Specifically, the Executive Order states that:
"The contractor will not discharge or in any other manner discriminate against any employee or
applicant for employment because such employee or applicant has inquired about, discussed, or
disclosed the compensation of the employee or applicant or another employee or applicant. This
provision shall not apply to instances in which an employee who has access to the compensation
information of other employees or applicants as a part of such employee's essential job functions
discloses the compensation of such other employees or applicants to individuals who do not
November 10, 2016 Page 7
otherwise have access to such information, unless such disclosure is in response to a formal
complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including
an investigation conducted by the employer, or is consistent with the contractor's legal duty to
furnish information."
The Executive Order provides that the Secretary of Labor shall issue regulations within 160 days
to implement the requirements of the Order.
On September 17, 2014, DOL issued the proposed implementing regulations for the Executive
Order. The proposal would apply to covered federal supply and service contracts and federally
assisted construction contracts worth more than $10,000 and entered into or modified on or after
the effective date of a final rule. The regulations provide that contractors must incorporate the
new nondiscrimination requirement into their employee manuals or handbooks, as well as
disseminate it to employees and applicants either through electronic or physical postings. The
proposal establishes two defenses that contractors may use against allegations of pay secrecy
violations—one based on legitimate workplace rules and the other based on the essential
functions of an employee's job.
On December 16, 2014, the Chamber submitted comments, which may be accessed here:
https://www.uschamber.com/comment/comments-ofccp-government-contractors-prohibitions-
against-pay-secrecy-policies-and-actions
On September 11, 2015, the DOL promulgated final regulations.
On September 30, 2016, the FAR Council promulgated interim regulations to amend the FAR to
implement the E.O.
Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal
Government and Executive Order 11246, Equal Employment Opportunity
On July 21, 2014, President Obama signed an Executive Order, entitled “Further Amendments to
Executive Order 11478, Equal Employment Opportunity in the Federal Government and
Executive Order 11246, Equal Employment Opportunity,” which amends Executive Order 11246
to provide that federal contractors cannot discriminate on the basis of “sex, sexual orientation,
gender identity, or national origin.”
The Executive Order provides that the Secretary of Labor shall issue regulations within 90 days
to implement the requirements of the Order. The Order will take effect pursuant to a timeframe
set in regulations by the Department of Labor.
On December 9, 2014, the OFCCP published the final rule. The rule requires contractors to
update the equal opportunity clause included in new or modified subcontracts or purchase orders,
to ensure that applicants and employees “are treated without regard to their sexual orientation
and gender identity, and to update the “equal opportunity language used in job solicitations” and
workplace notices. The rule became effective on April 8, 2015.
November 10, 2016 Page 8
On December 9, 2014, the OFCCP also published an information collection request with respect
to the final rule. The information request seeks comments that covered federal contractors will
need to modify language in the equal opportunity clause used in their subcontracts and purchase
orders; modify the “tag line language” used in job advertisements and other employment
solicitations; and report to the State Department and the OFCCP when employees or applicants
“are denied a visa or entry to a country in which or with which it is doing business if it believes
the denial is due to sex, race, color, national origin, sexual orientation or gender identity.”
Comments were due by February 6, 2015.
Fair Pay and Safe Workplaces Executive Order
On July 30, 2014, President Obama signed Executive Order 13673, entitled “Fair Pay and Safe
Workplaces.” The E.O. will govern new federal procurement contracts valued at more than
$500,000, and mandate that companies provide information to the federal government if there
“has been any administrative merits determination; arbitral awards or decision or civil judgment,
as defined in guidance issued by the Department of Labor” with respect to labor law violations
that are severe, repeated, willful, or pervasive, and that have occurred within the prior three years
and to be updated every 6 months. The labor laws that are covered include:
the Fair Labor Standards Act;
the Occupational Safety and Health Act;
the Migrant and Seasonal Agricultural Worker Protection Act;
the National Labor Relations Act;
the Davis-Bacon Act;
the Service Contract Act;
EO 11,246 on equal employment opportunity;
Section 503 of the Rehabilitation Act;
the Vietnam Era Veterans' Readjustment Assistance Act;
the Family and Medical Leave Act;
Title VII of the 1964 Civil Rights Act;
the Americans with Disabilities Act;
the Age Discrimination in Employment Act;
EO 13658 on increasing the minimum wage for contractors' employees; and
equivalent state laws as defined by the DOL.
This reporting requirement will flow down to any subcontractor level with a contract of
$500,000 or more. Subcontractors must report their violations to the next level up contractor.
The E.O. directs the General Services Administration to develop a single website for contractors
to meet reporting requirements.
Under the terms of the E.O., labor law violations will be reviewed by a Labor Compliance
Advisor (LCA) in each designated agency in consultation with the Department of Labor. The
LCA is directed to provide instructions to contracting officers as part of the responsibility
determination in determining whether such violations are “serious, repeated, willful, or
November 10, 2016 Page 9
pervasive.” A contracting officer, prior to making an award is required as part of the
responsibility determination to provide an offeror the opportunity to “disclose any steps taken to
correct the violations or improve compliance with the labor laws, including any agreements
entered into with an enforcement agency.” The E.O. states “that, subject to the determination of
the agency in most cases a single violation of the law may not necessarily give rise to a
determination of a lack of responsibility, depending on the nature of the violation.” It also
instructs contracting officers and contractors (as they make responsibility determinations of
subcontractors) to “ensure appropriate consideration is given to any remedial measures or
mitigating factors, including any agreements by contractors or other corrective action taken to
address violations.”
In addition, the E.O. restricts federal contractors of $1 million or more from requiring their
employees to enter into predispute arbitration agreements for disputes arising out of Title VII of
the Civil Rights Act or from torts related to sexual assault or harassment. Furthermore,
contractors will be required to give their employees information concerning their hours worked,
overtime hours pay, and any additions to or deductions made from their pay.
The E.O. provides that the FAR Council shall issue regulations to implement the requirements of
the Order and the Secretary of Labor shall issue guidance explaining how the various levels of
violations will be applied to the different laws, as well as explaining the different state equivalent
laws that may apply.
On May 28, 2015, the Federal Acquisition Regulation (FAR) Council promulgated proposed
regulations to amend the FAR to implement the “Fair Pay and Safe Workplaces” Executive
Order. These regulations among other things: describe the role of Labor Compliance Advisors as
supporting contracting officers and contractors in making responsibility determinations before
making an award and addressing violations that occur during contract performance; prescribes
the process by which contractors would be held responsible for flow-down for their
subcontractor’s performance; requires contractors to update their disclosure of labor violations
semi-annually; and describes the elements of the wage statement and how it should be
administered. The regulations also request comment on alternatives such as using a phase-in
approach for subcontractor disclosure requirements and revising the flow-down process to permit
subcontractors to directly report violations to the Department of Labor, which would then assess
such violations. On August 26, 2015, the Chamber submitted comments, which may be accessed
here: https://www.uschamber.com/comment/comments-gsa-and-dol-the-fair-pay-and-safe-
workplaces-regulation-and-guidance
Also, on May 28, 2015, the Department of Labor issued proposed guidance to administer the
“Fair Pay and Safe Workplaces” E.O. This proposed guidance will assist Labor Compliance
Advisors in evaluating and comparing "administrative merits determinations, arbitral awards or
decisions, and civil judgments" to determine whether such findings reflect "serious, repeated,
willful, or pervasive violations" of labor and employment laws. Proposed definitions are as
follows:
“Administrative merits determination”-identifies seven categories of documents, notices, and
findings from the Wage and Hour Division, Occupational Safety and Health Administration,
November 10, 2016 Page 10
Office of Federal Contract Compliance Programs, Equal Employment Opportunity
Commission and National Labor Relations Board- these notices can be final or subject to
appeal or further review; essentially they represent the initial step in an enforcement
procedure.
“civil judgment”- judgment or order that is not final or is subject to appeal.
“arbitral award or decision”- any award or order by an arbitrator or arbitral panel, which
determined that the contractor or subcontractor violated any provisions of the Labor Laws, or
enjoined or restrained the contractor or subcontractor from violating any provisions of the
Labor Laws.
“Arbitral award”- an award or order that is not final or is subject to being confirmed,
modified, or vacated by a court.
“Arbitral Award or decision”-includes an arbitral award or decision regardless of whether it
is issued by one arbitrator or a panel of arbitrators and even if the arbitral proceedings were
private or confidential. Also includes an arbitral award or decision finding that a contractor
or subcontractor violated any of the Labor Laws even if the award or decision is subject to
further review in the same proceeding, is not final, or is subject to being confirmed,
modified, or vacated by a court.
The proposed guidance also defines the terms: “serious,” “willful,” “repeated,” and “pervasive”
as follows:
“Serious” — Involves at least one of the following:
o an OSH Act or OSHA approved State Plan citation designated as serious, a notice of failure
to abate an OSH Act violation, or an imminent danger issued under the OSH Act or an
OSHA-approved State plan;
o the affected workers comprised 25% of more of the workforce at the worksite;
o fines and penalties of at least $5,000 were assessed or back wages of at least $10,000 were
due or injunctive relief was imposed by an enforcement agency or a court;
o the contractor or subcontractor’s conduct violated MSPA or the child labor provisions of the
FLSA and caused or contributed to the death or serious injury of one or more workers;
employment of a minor who was too young to be legally employed or in violation of a
Hazardous Occupations Order;
o the contractor or subcontractor engaged in an adverse employment action (including
discharge, refusal to hire, suspension, demotion, or threat) or is responsible for unlawful
harassment against one or more workers for exercising any rights protected by any of the
Labor Laws;
o the findings of the relevant enforcement agency, court, arbitrator or arbitral panel support a
conclusion that the contractor or subcontractor engaged in a pattern or practice of
discrimination or systemic discrimination;
o the findings of the relevant enforcement agency, court, arbitrator or arbitral panel support a
conclusion that the contractor or subcontractor interfered with the enforcement agency’s
investigation; or
o the contractor or subcontractor breached the material terms of any agreement or settlement
entered into with an enforcement agency, or violated any court order, any administrative
order by an enforcement agency, or any arbitral award.
November 10, 2016 Page 11
“Willful”-
o For purposes of a citation issued pursuant to the Occupational Safety and Health (OSH) Act
or an OSHA- approved State Plan, the citation at issue was designated as willful or any
equivalent State-designation (i.e., “knowing”), and the designation was not subsequently
vacated;
o For purposes of the Fair Labor Standards (including the Equal Pay Act), the administrative
merits determination sought or assessed back wages for greater than two years or sought or
assessed civil monetary penalties for a willful violation, or there was a civil judgment or
arbitral award or decision finding the contractor or subcontractor liable for back wages for
greater than two years or affirming the assessment of civil monetary penalties for a willful
violation;
o For purposes of the Age Discrimination in Employment Act (ADEA), the enforcement
agency, court, arbitrator, or arbitral panel assessed or awarded liquidated damages;
o For purposes of Title VII or the Americans with Disabilities Act, the enforcement agency,
court, arbitrator, or arbitral panel assessed or awarded punitive damages for a violation
where the contractor or subcontractor enaged in a discriminatory practice with malice or
reckless indifference to the federally protected rights of an aggrieved individual; or
o For purposes of any of the other Labor Laws, the findings of the relevant enforcement
agency, court, arbitrator, or arbitral panel supports a conclusion that the contractor or
subcontractor knew that its conduct was prohibited by any of the Labor Laws or showed
reckless disregard for, or acted with plain indifference to, whether its conduct was
prohibited by one or more requirements of the Labor Laws.
“Repeated”- The violation is the same as or substantially similar to one or more other
violations of the Labor Laws by the contractor or subcontractor. “Substantially similar”
does not mean identical, rather, the term means where essential elements are shared in
common. The same or substantially similar other violations must be reflected in one or
more civil judgments, arbitral awards or decisions, or adjudicated or uncontested
administrative merits determinations issued within the last three years, and must be the
subject of one or more separate investigations or proceedings.
“Pervasive”- Is basic disregard by the contractor or subcontractor for the Labor Laws as
demonstrated by a pattern of serious or willful violations, continuing violations, or
numerous violations.
According to the Guidance, the test for all of the designated terms will be considered on a case-
by-case basis using the “totality of the circumstances” standard. The Guidance also spells out
how contracting officers should evaluate violation of the Labor Laws, including mitigating
circumstances.
The Department has announced that at a future date the agency will publish a second proposed
guidance addressing which State laws are equivalent to the 14 federal labor laws and executive
orders identified in the Order accompanying another FAR regulations.
November 10, 2016 Page 12
On August 26, 2015, the Chamber submitted comments, which may be accessed here:
https://www.uschamber.com/comment/comments-gsa-and-dol-the-fair-pay-and-safe-workplaces-
regulation-and-guidance
On August 23, 2016, President Obama signed an amendment to Executive Order 13673, to
clarify reporting requirements for subcontractors.
On August 25, 2016, the Federal Acquisition Regulation (FAR) Council issued final regulations
to amend the FAR to implement the “Fair Pay and Safe Workplaces” Executive Order, and the
Department of Labor issued final guidance to administer the “Fair Pay and Safe Workplaces”
E.O.
There were very few changes made between the proposal and the final regulations and guidance,
and none that make this more acceptable. The most significant change is how subcontractors
will be required to report their violations. Under the proposal, they would have had to report
their violations of the 14 different labor laws and E.O.s to their higher tier contractor who would
make the determination of whether the subcontractor had sufficient responsibility and integrity to
be a federal contractor. Under the final regulations and guidance, subcontractors will now report
their violations to the Department of Labor who will make the determination of responsibility
and integrity and report back to the subcontractor who will then inform the relevant higher tier
contractor. While this change is significant, it leaves many questions unanswered and essentially
replaces one unworkable approach for another. Chief among the questions is how will DOL
process the thousands of subcontractor reports it will receive? The guidance does not specify
what office in DOL will handle this, nor what level of resources will be devoted to this process.
While removing the responsibility determination from prime/upper tier contractors may be a
positive, the bottleneck and uncertainty expected to ensue from DOL handling this process could
result in substantial delays, as well as more contests and challenges to unfavorable
determinations. Because this approach to subcontractor reporting differed from the E.O., an
amendment to the original E.O. was issued as well.
Another change made is that the final FAR rule requires that prospective contractors will
publicly disclose whether they have violations of covered laws within the reporting period and,
for prospective contractors being evaluated for responsibility, certain basic information about
those violations. Contractors with violations will also have the opportunity to voluntarily
provide to the government additional information, such as mitigating circumstances, remedial
measures, and other steps taken to achieve compliance with workplace protections. This
additional information will only be made public if the contractor chooses to do so. In addition,
members of the public will be able to contact Agency Labor Compliance Advisors with
information regarding administrative merits determinations, civil judgments, or arbitral awards
they feel should have been disclosed about contractors' labor violations (mere allegations will not
be considered.) Contact information for all ALCAs will be made available on the Department of
Labor's website.
One clarification that was made is that contracting officers will be allowed to award a contract to
a contractor who has reported violations if that contractor commits to reaching an agreement
with the relevant agency in future. This will mean that that agency (i.e. OSHA, Wage and Hour
November 10, 2016 Page 13
Division, NLRB, EEOC, etc.) will have direct involvement in whether that contract action can
move forward. The Procurement Act (under which this Executive Order was issued) never
contemplated such involvement from regulatory agencies in the procurement process.
Among the provisions that were not changed were the following:
Definition of administrative merits determinations does not allow for
adjudications;
Prohibition on pre-dispute arbitration clauses for contracts of at least $1 million;
Creation of Labor Compliance Advisors to assist contracting officers in
evaluating contractor labor and employment law compliance;
Definitions of severity levels: serious, repeated, willful, and pervasive that are not
part of statutes; and
Required reporting of violations every 6 months during life of the contract.
The administration also announced a phased-in schedule for implementing the new
requirements:
The FAR regulations implementing the FPSW Order will be effective on October
25, 2016.
Key Phase-In Dates: o September 12, 2016: Preassessment begins, through which current or
prospective contractors may come to DOL for a voluntary assessment of
their labor compliance history, independent of a specific government
contract.
o October 25, 2016: The FAR rule takes effect. Mandatory disclosure of
labor compliance history begins for all prime contractors (only) under
consideration for contracts with a total contract value greater than or equal
to $50 million.
The general rule under the Order is that contractors and subcontractors
must disclose decisions regarding labor violations that were rendered
against them within the 3-year period preceding the date of the disclosure.
This 3-year disclosure period will be phased in during the first years of
implementing the Order, so that no contractor or subcontractor need
disclose any decisions regarding labor violations that were rendered
against them before October 25, 2015. The reporting disclosure period is
initially limited to one (1) year and will gradually increase to three (3)
years by October 25, 2018—note, the exact schedule for this phase-in has
not been provided.
o October 25, 2016: Companies with federal contracts of $1 million or
more are prohibited from requiring their workers to enter into pre-dispute
arbitration agreements for disputes arising out of Title VII of the Civil
Rights Act, or from torts related to sexual assault or harassment, except
where valid contracts already exist and remain unmodified.
o January 1, 2017: The paycheck transparency clause takes effect,
requiring contractors to provide wage statements and notice of any
independent contractor relationship to their covered workers.
November 10, 2016 Page 14
o April 25, 2017: The total contract value above which prime contractors
must make disclosures is reduced to $500,000.
o October 25, 2017: Mandatory disclosure begins for all subcontractors
under consideration for covered subcontracts with a total contract value
greater than or equal to $500,000.
On October 24, 2016, the U.S. District Court for the Eastern District of Texas enjoined the FAR
rule and DOL guidance from taking effect, issuing a preliminary injunction with respect to the
reporting requirements and banning of mandatory pre-dispute arbitration agreements while
preserving the “paycheck transparency” requirement.
Executive Order Establishing Paid Sick Leave for Federal Contractors
On September 7, 2015, President Obama signed an Executive Order, entitled “Establishing Paid
Sick Leave for Federal Contractors.” The Executive Order provides for “no less than 1 hour of
paid sick leave” for “every hour worked,” up to 56 hours per year, and applies to “contracts,”
“contract-like instruments,” and “solicitations.” The Executive Order also applies to any
“subcontractor” of the prime contractor. The E.O. also specified that the mandate will flow down
to “lower-tier subcontracts.”
The Executive Order is wide-ranging and covers “procurement contracts for services of
construction;” “contract or contract-like instrument for services covered by the Service Contract
Act;” “contract or contract-like instrument for concessions;” and “contract or contract-like
instrument entered into with the Federal Government in connection with Federal property or
lands and related to offering services for Federal employees, their dependents, or the general
public.”
The Executive Order permits leave to be used for physical or mental illness, injury, or medical
condition; obtaining diagnosis, care, or preventive care from a health care provider; caring for a
child, a parent, a spouse, a domestic partner, or any other individual related by blood or affinity
whose close association with the employee is the equivalent of a family relationship who has any
of the conditions or needs for diagnosis, care, or preventive care; or domestic violence, sexual
assault, or stalking, if the time absent from work, to obtain additional counseling, to seek
relocation, to seek assistance from a victim services organization, to take related legal action,
including preparation for or participation in any related civil or criminal legal proceeding, or to
assist an individual related to the employee.
The Order specifies that the paid sick leave would be in addition to “fringe benefits” required
under the Davis-Bacon Act and the Service Contract Act.
The requirements of the Order state that, “Paid sick leave shall be provided upon the oral or
written request of an employee that includes the expected duration of the leave, and is made at
least 7 calendar days in advance where the need for the leave is foreseeable, and in other cases as
soon as is practicable.”
November 10, 2016 Page 15
Under the terms of the Order, employers would only be permitted to require certification for
“employee absences of 3 or more consecutive workdays, no later than 30 days from the first day
of leave.”
On February 25, 2016, the Department of Labor promulgated proposed regulations. The
proposed regulations spell out definitions for purposes of the E.O., basing many of the terms
used in the final regulations implementing the E.O., “Establishing a Minimum Wage for
Contractors.” The main differences are that the term, “child” is more comprehensive than that
used in the Family and Medical Leave Act as the definition is “adopted from the definition of
‘son or daughter’ in the OPM regulations governing leave for federal employees; and the phrase,
“employee,” is also broader than the minimum wage E.O. as the phrase incorporates
“any person engaged in performing work on or in connection with a contract covered by the
Executive Order, and whose wages under such contract are governed by the SCA, DBA, or
FLSA, including employees who qualify for an exemption from the FLSA’s minimum wage and
overtime provisions, regardless of the contractual relationship alleged to exist between the
individual and the employer,” and “any person performing work on in connection with a covered
contract and individually registered in a bona fide apprenticeship or training program.”
The proposed regulations clarify that the phrase, “individual related by blood or affinity whose
close association with the employee is the equivalent of a family relationship,” is interpreted
expansively as “any person with whom the employee has a significant personal bond that is or
like a family relationship, regardless of biological or legal relationship” and encompasses
“non-nuclear family structures.”
Furthermore, for purposes of domestic violence, the agency derives terms from the Violence
Against Women’s Act (VAWA), proposing to define “intimate partner” as the equivalent as
“dating partner” in VAWA, and borrows from the definition of “legal assistance” in VAWA to
give significance to the term, “related legal action” or “related civil or criminal legal
proceeding.”
The proposed regulations among other things, provides an option for contractors to exempt
workers performing in connection with covered contracts for less than 20 percent of their work
hours in a given workweek as long as the contractor segregates the hours worked in connection
with the covered contract from other work not subject to the Executive Order for that worker and
in that circumstance, imposes additional recordkeeping requirements for contractors (the
requirement to maintain records reflecting each worker’s occupation (s) and the requirement to
maintain records reflecting hours worked). If a contractor elects to not segregate time worked, a
presumption exists that an employee is spending his or her time “performing work on in
connection with a covered contract.”
The proposed regulations also sets forth rules and restrictions regarding the accrual and use of
paid sick leave; describes potential approaches with respect to how the paid sick leave provisions
would apply to successor contracts; addresses the interactions of paid sick leave with paid sick
time required by state or local law; and spells out the complaint procedure for violations and the
imposition of remedies, including where the Secretary deems appropriate, the use of liquidated
November 10, 2016 Page 16
damages in addition to pay/benefits denied, other actual monetary losses sustained as a direct
result of the violation; or equitable or other relief.
The proposed regulations state that the E.O. will be effective January 1, 2017, for new and
replacement contracts.
On April 12, 2016, the Chamber submitted comments, which may be accessed here:
https://www.uschamber.com/sites/default/files/documents/files/uscc_and_ifa_comments_on_pai
d_sick_leave_eo_proposed_regulations.pdf
Furthermore, the Chamber submitted comments for the Paperwork Reduction Act Notice on
April 25, 2016.
On September 30, 2016, DOL issued final regulations. Below is a brief description of important
changes made in the final rule:
Provides that the following situations do not trigger the paid sick leave requirement: a
contracting agency’s exercise of a short-term extension, any pricing adjustments, or if
there is a unilateral exercise of a pre-negotiated option to renew an existing contract.
Provides for a new, temporary exclusion from the requirement of the E.O. for employees
whose work is governed by certain collective bargaining agreements and delays until
January 1, 2020, by which all contractors that take advantage of this limited compliance
can come into compliance;
Allows a contractor to estimate the portion of an employee’s hours worked spent in
connection with covered contracts as long as the estimate is reasonable and based on
verifiable information;
Allows a contractor to use PTO policy (paid time off with no explanation) to satisfy the
paid sick leave requirement as long as an employee can access the leave for all of the
reasons listed. The employer is not obligated to provide more leave if the employee
exhausts the PTO leave for reasons not covered under the E.O./regulations.
Permits paid sick leave to accrue no less frequently than at the conclusion at the end of
the pay period or each month, whichever interval is shorter, rather than no less frequently
than at the end of each workweek as originally proposed;
Removes the requirement that successor contractors reinstate paid sick leave to
employees who worked on the predecessor contract;
Permits the contractor to have a general policy to require certification or documentation
for absences of 3 or more consecutive full workdays if it does so in a manner reasonably
calculated to provide actual notice of the requirement to employees; and
Permits paid sick leave benefits to be paid by multiemployer plans.
November 10, 2016 Page 17
Presidential Memoranda
Updating and Modernizing Overtime Regulations
On March 13, 2014, President Obama issued a Presidential Memorandum instructing the
Secretary of Labor to update overtime regulations (Section 541) under the Fair Labor Standards
Act. The Memorandum directs the Secretary to “propose revisions to modernize and streamline
the existing overtime regulations.” In doing so, the Secretary is required to “consider how the
regulations could be revised to update existing protections consistent with the intent of the Act;
the changing nature of the workplace; and to simplify the regulations to make them easier for
both workers and businesses to understand and apply.”
On June 10, 2014, Secretary of Labor Perez hosted a meeting with Chamber representatives
including several companies to hear concerns from employers about the impact of this
rulemaking. Several of the attendees made clear that their employees have resisted being
reclassified from exempt to non-exempt in the past as they see this as a demotion and often lose
access to preferred benefits.
On July 6, 2015, the Wage and Hour Division issued the proposed rule. The proposed regulation
set the minimum salary required for exemption at the 40th
percentile of weekly earnings for full-
time salaried workers, which means the new salary threshold would be $50,440/year or
$970/week, up from $23,660/year or $540/week. The proposal would also increase the total
annual compensation requirement needed to exempt highly compensated employees to the
annualized value of the 90th
percentile of weekly earnings of full-time salaried employees,
$122,148/year, up from $100,000/year. Furthermore, the proposed regulation would establish a
mechanism for automatically updating the salary levels annually based either on the percentile or
inflation. Also, the Department sought comment regarding the “possibility of including
nondiscretionary bonuses to satisfy a portion of the standard salary requirement.”
In addition, the Department considered “whether to add to the regulations examples of additional
occupations to provide guidance” on “how the general executive, administrative, and
professional exemption criteria may apply to specific occupations.” In particular, while stating
that help desk employees cannot qualify for an exemption, DOL “requests comments from
employer and employee stakeholders in the computer and information technology sectors as to
what additional occupational titles or categories should be included as examples in the part 541
regulations.”
The Department of Labor did not propose specific regulatory changes for the “duties” test.
However, the preamble to the proposal included a request for comments, “to determine whether
in light of our salary level proposal, changes to the duties tests are also warranted.” The possible
changes identified by the Department include requiring employers to show any employee is
performing the primary duties for a specific amount of time to qualify as exempt. This would
mirror what California has in place where employees must perform their primary duties for
“more than 50%” of their time. This makes these exemptions very hard for employers to use.
This request for comments is of major concern, potentially representing a “back handed”
November 10, 2016 Page 18
approach to altering the “duties” test if the Wage and Hour Division inserts final regulatory text
without giving parties a chance to comment.
On September 4, 2015, the Chamber submitted comments, which may be accessed here:
https://www.uschamber.com/comment/comments-dol-defining-and-delimiting-the-exemptions-
executive-administrative-professional
On May 23, 2016, the Department of Labor published the final regulations. The final regulations
lower the salary threshold from $50,440 to $47,476; increase the highly compensated salary level
to $134,000; “automatically update the salary level every three years based on the 40th
percentile
of earnings for full-time salaried workers in the lowest-wage Census Region, currently the
South”; and permit employers to use nondiscretionary bonuses and incentive payment to satisfy
up to 10 percent of the salary level for employees under the standard exemption. In addition, the
final regulations do not make any changes to the duties test.
The final rules set the effective date to December 1, 2016, except for health care providers with
providers of Medicaid-funded services for individuals with intellectual or developmental
disabilities in residential homes or facilities with 15 or fewer beds. These employers will have to
comply with the overtime regulations by March 17, 2019.
On September 20, 2016, the U.S. Chamber in conjunction with other business trade associations
and local Chambers of Commerce filed a lawsuit challenging the overtime regulations in the
Eastern District of Texas (Sherman Division), arguing that the salary threshold is too high, and
DOL violated the FLSA since the agency lacks the statutory authority to index the threshold to
inflation. At the same time, a coalition of 21 states filed a similar (but not identical) challenge in
the same court. The difference between the two cases is that the states are seeking a preliminary
injunction while ours does not. On October 14, 2016, the U.S. Chamber requested expedited
summary judgment. On October 19, 2016, the Court consolidated the U.S. Chamber’s case with
the similar lawsuit filed by 21 states.
Achieving Pay Equality Through Compensation Data Collection
On April 8, 2014, President Obama issued a Presidential Memorandum to instruct the Secretary
of Labor to develop regulations within 120 days to require federal contractors and subcontractors
to submit to the Department of Labor summary data on the compensation paid their employees,
including data broken down by race and sex.
See commentary below for information regarding the proposed rulemaking pursuant to this
memorandum. On August 8, 2014, the Office of Federal Contract Compliance Programs
promulgated a proposed rule, developing a compensation data collection tool. Contractors and
subcontractors would be required to submit additional data in an “Equal Pay Report.” The report
would require the submission of summary data on employee compensation by sex, race,
ethnicity, specified job categories, and other relevant data points such as hours worked, and the
number of employees. Comments were originally due by November 6, 2014. On October 31,
2014, OFCCP extended the public comment period until January 5, 2015.
November 10, 2016 Page 19
On January 5, 2015, the Chamber submitted comments, which may be accessed here:
https://www.uschamber.com/sites/default/files/chamber_comments_on_ofccp_comp_data_nprm.
The Spring 2016 Regulatory Agenda indicates that this proposal is now considered a “long term
action.”
Completed Rulemakings
Representation-Case Procedures (Ambush Elections-Part I)
On June 22, 2011, the National Labor Relations Board published a notice of proposed
rulemaking that would have amended procedural elements governing the filing and processing of
petitions relating to the representation of employees for purposes of collective bargaining with an
employer.
The proposal would have significantly limited the time period between when a petition is filed,
and an election for a union is scheduled to be held. In addition, the regulations would have
imposed new requirements on employers by requiring that the voter eligibility list to be provided
to the union include “each employee’s work location, shift, and classification” and additional
contact information, such as telephone numbers, and e-mail addresses (where available). In
addition, for any pre-election hearing, an employer would have been potentially barred from
raising any new issues during the hearing if the relevant issue in dispute is not raised first in a
new Statement of Position Form. The proposed rule also would have created a bright-line test
with respect to proposed unit eligibility by declaring that if “the hearing officer determines that
the only genuine issues remaining in dispute concerning the eligibility or inclusion of individuals
who would constitute less than 20 percent of the unit if they were found to be eligible to vote, the
hearing officer will close the hearing.” The cumulative impact of these proposed changes would
have in all likelihood lead to a muzzling of employer free speech rights.
The Chamber participated in the Board’s July 18th
, 2011, public meeting on the rulemaking, and
filed comments on the proposal on August 22, 2011. On September 6, 2011, the Chamber filed
“reply comments” with the NLRB, with a focus on responding to arguments raised by the
AFL-CIO and SEIU.
The Chamber’s comments may be accessed here:
https://www.uschamber.com/comment/comments-nlrb-ambush-elections-proposed-rule
The Chamber’s reply comments may be accessed here:
http://www.uschamber.com/issues/comments/2011/responsive-comments-nprm-speeding-
representation-elections
On November 29, 2011, the Board unveiled a revised proposal to be voted upon in a meeting
held on November 30, 2011. The revised proposal deferred decisions on many of the proposed
provisions such as the new Statement of Position form, and the inclusion of e-mail addresses and
phone numbers in the voter eligibility list until a later date. However, the Board’s proposal still
November 10, 2016 Page 20
included several important provisions, such as the effective elimination of pre-election appeals
that would have dramatically shortened election times.
On December 22, 2011, the National Labor Relations Board published a final rule to alter the
regulations governing representation case procedures, consistent with its November 30th
resolution.
The rule went into effect on April 30, 2012. Prior to publication in the Federal Register, on
December 20, 2011, the U.S. Chamber of Commerce and the Coalition for a Democratic
Workforce filed a lawsuit against the National Labor Relations Board in the District of
Columbia, challenging this regulation. On May 14, 2012, the judge in the District of Columbia
case invalidated the rule, due to a lack of a quorum. The judge rejected the NLRB’s request for
reconsideration on July 27, 2012. On August 7, 2012, the NLRB appealed the decision to the
D.C. Circuit. On February 19, 2013, the Court issued an Order holding in abeyance an appeal of
the case. On December 9, 2013, the NLRB agreed to voluntarily dismiss its appeal with the
consent of the U.S. Chamber of Commerce and the Coalition for a Democratic Workforce. On
January 22, 2014, the NLRB published a final rule rescinding these changes.
Representation-Case Procedures (Ambush Elections II)
On February 6, 2014, the National Labor Relations Board published a notice of proposed
rulemaking that is in essence a reissuance of the 2011 proposed changes, which will amend
procedural elements governing the filing and processing of petitions relating to the representation
of employees for purposes of collective bargaining with an employer.
The proposal will significantly limit the time period between when a petition is filed, and an
election for a union is scheduled to be held. In addition, the regulations impose new
requirements on employers by requiring that the voter eligibility list to be provided to the union
include “each employee’s work location, shift, and classification” and additional contact
information, such as telephone numbers, and e-mail addresses (where available). In addition, for
any pre-election hearing, an employer could potentially be barred from raising any new issues
during the hearing if the relevant issue in dispute is not raised first in a new Statement of Position
Form. The proposed rule also would create a bright-line test with respect to proposed unit
eligibility by declaring that if “the hearing officer determines that the only genuine issues
remaining in dispute concerning the eligibility or inclusion of individuals who would constitute
less than 20 percent of the unit if they were found to be eligible to vote, the hearing officer will
close the hearing.” The cumulative impact of these proposed changes will in all likelihood lead
to a muzzling of employer free speech rights.
On April 7, 2014, the Chamber submitted comments, which may be accessed here:
https://www.uschamber.com/sites/default/files/documents/files/NLRB%202011%200002%20US
%20Chamber%20of%20Commerce.pdf
On April 11, 2014, the Chamber testified before the NLRB, expressing opposition to the
regulation in its current form.
November 10, 2016 Page 21
On April 14, 2014, the Chamber submitted “reply comments,” which may be accessed here:
https://www.uschamber.com/sites/default/files/documents/files/NLRB%202014%20Election%20
Rule%20US%20Chamber%20of%20Commerce%20Reply%20Comment%20-%204-14-
2014.pdf
On December 15, 2014, the National Labor Relations Board promulgated the final rule. The
final rule among other things, makes the following changes: states that the regional director will
set the hearing to open 8 days—rather than 7 days—from service of the notice of hearing
excluding intervening federal holidays and states that the regional director may postpone the
opening of the hearing up to 2 business days upon request of a party showing special
circumstances, and for more than 2 business days upon request of a party showing extraordinary
circumstances; alters the requirement in the Statement of Position form that if the proposed unit
is not appropriate, the employer would be required to identify the most similar unit to stating the
basis for its contention that the proposed unit is inappropriate, and the classifications, locations,
or other employee groupings that must be added to or excluded from the proposed unit to make it
an appropriate unit; alters the bright-line test with respect to proposed unit eligibility from a 20
percent threshold to a discretionary matter; rejects the proposal to vest hearing officers
with the authority to determine whether parties may file post-hearing briefs, and instead vests
that authority with the regional director; clarifies that employers are not required to provide the
work e-mail addresses or work phone numbers of its employees as part of a voter list to either the
nonemployer parties or the regional director; and provides that regional directors may extend the
time for filing offers of proof in support of election objections upon request of a party showing
good cause.
On January 5, 2015, the U.S. Chamber filed a lawsuit challenging the National Labor Relations
Board’s (NLRB) ambush election regulation. The Coalition for a Democratic Workplace, the
National Association of Manufacturers, the National Retail Federation and the Society for
Human Resource Management joined the Chamber in the lawsuit, which was filed in the U.S.
District Court for the District of Columbia.
The Chamber is alleging that, the rule violates the National Labor Relations Act and the
Administrative Procedure Act, as well as employers’ free speech and due process constitutional
rights. In particular, the lawsuit challenges the Board’s rule as impermissibly limiting
employers’ rights to communicate with employees about unionization by dramatically shortening
the period between the filing of a union election petition and the holding of the election itself.
On January 14, 2015, the Associated Building of Contractors also filed a separate lawsuit against
the NLRB in federal court in Texas seeking an injunction. On February 5, 2015, the U.S.
Chamber filed a brief, asking the court to vacate the rule. On June 1, 2015, the judge upheld the
NLRB’s regulation in the Texas court case. On July 30, 2015, the judge upheld the NLRB’s
regulation in the case the Chamber filed.
On April 14, 2015, the rule took effect while both lawsuits were still pending.
November 10, 2016 Page 22
Family and Medical Leave Act, as Amended
On June 27, 2014, the Department of Labor promulgated a Notice of Proposed Rulemaking,
which revises the definition of “spouse” in light of the United States Supreme Court’s decision in
United States v. Windsor—the case that decided the federal government will recognize same sex
marriages in states that permit them. In particular, the test for FMLA applicability would change
from a “state of residence” rule to a “place of celebration” rule. The Chamber submitted
comments in conjunction with SHRM and the College and University Professional Association
for Human Resources on August 11, 2014. The comments asked for greater clarification on
determining proof of marriage.
On February 25, 2015, the Department of Labor promulgated final rules. On March 26, 2015, a
U.S. District Judge in Texas issued a Stay in favor of four states that brought a lawsuit
challenging the regulation, meaning that for the time being, the rule will not go into effect in
Texas, Arkansas, Louisiana, and Nebraska.
Systemic Compensation Discrimination Under Executive Order 11246 and Voluntary Guidelines
for Self-Evaluation
On January 3, 2011, the Office of Federal Contract Compliance Programs (OFCCP) published a
notice proposing to rescind guidance issued during the last administration related to systemic
compensation discrimination. The existing guidance makes it clear that the OFCCP will not use
the debunked pay-banding (or the so-called DuBray method) of determining whether
discrimination may have occurred, but will instead use more robust and accurate methodologies
such as multivariable regression. It also issued voluntary guidelines for self-evaluation. On
February 28, 2013, the OFCCP published a final notice rescinding both the guidance and the
voluntary guidelines. In their place, OFCCP issued directive 307, described in the significant
non-regulatory activities section.
The Chamber filed comments on this proposal on March 4, 2011.
The comments may be accessed here:
http://www.uschamber.com/issues/comments/2011/comments-ofccp-rescission-compensation-
guidance
Revising “Companionship” Exemption to the Fair Labor Standards Act
On December 27, 2011, the Wage and Hour Division published a proposed rule to effectively
eliminate the statutory exemption afforded to companionship services providers and live-in
domestic services providers under the Fair Labor Standards Act. Specifically, the Department’s
proposal explicitly states that third party providers of these services will no longer be covered by
the exemption from the FLSA, meaning that they will now be subject to minimum wage and
overtime requirements. For those workers hired directly by the family or recipient of the
services, the new proposal would impose a 20 percent threshold for the amount of time incidental
November 10, 2016 Page 23
services may be performed. Many of these functions are ordinary household activities that are
some of the main reasons clients hire people to provide companionship services. These
restrictions are so severe as to eliminate, for any practical purpose, the availability of the
exemption which Congress provided in the statute. This will have a dramatic effect on how
providers of these services operate and their competiveness. In addition, the proposed regulation
also states that an employer of live-in domestic service employees would be required to keep a
record of hours worked.
On March 21, 2012, the Chamber submitted comments.
The comments may be accessed here: https://www.uschamber.com/comment/comments-dol-
proposed-rulemaking-regarding-application-fair-labor-standards-act-domestic
On October 1, 2013, the Department of Labor published the final rule in the Federal Register,
without any meaningful changes from the proposal. The final regulation was scheduled to go into
effect on January 1, 2015.
On December 22, 2014, the D.C. District Court invalidated the portion of the rule that home
health care workers employed through a third party agency or other businesses are no longer
exempt from FLSA minimum wage and overtime rules. On December 31, 2014, the D.C.
District Court stayed enforcement of the entire rule until January 15, 2015. On January 14, 2015,
the D.C. District Court vacated the rule, meaning that at that time, the rule was stopped from
going into effect. On August 21, 2015, the D.C. District Court of Appeals held that DOL had
authority to promulgate the regulations. The rule went into effect on November 13, 2015.
OSHA Recordkeeping Update from SIC codes to NAICS codes; reporting of hospitalizations and
amputations
OSHA published a proposed regulation on June 22, 2011, that would do several things: update
the industry codes on which OSHA relies from the old Standard Industrial Classification (SIC)
system to the newer and more widely used North American Industry Classification System
(NAICS); change the reporting requirement for hospitalizations to within 8 hours for any work-
related hospitalization—instead of just when three or more employees were hospitalized; and
require reporting any work-related amputation within 24 hours.
Because the conversion to the new system is not seamless, some industries and employers who
currently are exempt from the recordkeeping requirement because of low injury numbers will
now be covered by the recordkeeping requirement and conversely some who were previously
covered will no longer be covered. Also, by requiring reporting for hospitalizations for every
employee, instead of just when three or more are involved, the issue of work-relatedness is far
less clear. There are also concerns about how an employer would have to respond if an
employee who suffered an amputation is taken to the hospital which is very likely—under which
time requirement would the employer have to report? Finally, the only method of reporting
provided is by telephone, which ignores the various other technology options that are available
and provide a record of the employer having reported.
November 10, 2016 Page 24
The Chamber filed comments on October 28, 2011 and can be accessed here:
https://www.uschamber.com/comment/comments-occupational-injury-and-illness-recording-and-
reporting-requirements
On September 18, 2014, OSHA promulgated the final rule. The new rules went into effect on
January 1, 2015. OSHA has stated that the reports will be posted online. This reporting was not
mentioned in the proposal. Employers are now required to report to OSHA the hospitalization of
any employee who is admitted overnight for care or treatment for any work-related injury or
reason. The reporting must be within 24 hours of the hospitalization or 24 hours of the employer
finding out about the hospitalization. In addition, amputations and losses of an eye must also be
reported within the same time frame. To report, employers must call an OSHA area office or a
national toll-free number or access an online web portal.
OFCCP Scheduling Letter and Itemized Listing
On May 12, 2011, the OFCCP published a notice, which seeks to make significant changes to the
“scheduling letter” and “itemized listing” that it uses at an initial stages of a compliance
evaluation. On July 11, 2011, the Chamber submitted comments sharply critical of some of the
proposed changes, in particular, the creation of a new government database of private
compensation information, the burdens that would be imposed by the new recordkeeping and
reporting obligations, and the invasion of privacy and threat to proprietary and confidential
information. On September 28, 2011, the OFCCP sent a final version of the letter and itemized
listing to OMB. The Chamber submitted comments on October 28, 2011.
The July 11, 2011, comments may be accessed here:
https://www.uschamber.com/comment/comments-proposed-extension-approval-information-
collection-requirements
The October 28, 2011, comments may be accessed here:
https://www.uschamber.com/comment/comments-proposed-extension-approval-information-
collection-requirements%E2%80%94non-construction
On September 30, 2014, the Office of Management and Budget published a Notice in the
Federal Register announcing that OMB has approved changes to the “scheduling letter” and
“itemized listing.” The “scheduling letter” incorporates changes made by the Vietnam Era
Veterans Readjustment Assistance Act (VEVRAA) regulations, and the “itemized listing”
reflects the recent regulations under VEVRAA and Section 503 of the Rehabilitation Act. The
new itemized listing also reflects the OFCCP's February 2013 rescission of its prior voluntary
guidelines and compensation standards. The OMB-approved renewal for the “itemized listing”
retains the prior requirement that contractors submit employment activity data by either group or
job title and provide this data by sex. However, contractors will now submit race and ethnicity
information using five specified categories instead of two broad categories (i.e., minority and
nonminority). Furthermore, contractors will be required to submit individualized employee
compensation data as of the date of the workforce analysis in their Affirmative Action programs,
also noting the job title, job category, and EEO-1 Category. As proposed in 2011, the term,
“compensation” has been revised to include consideration of hours worked, incentive pay, merit
November 10, 2016 Page 25
increases, locality pay, and overtime. The Notice indicates that OFCCP will require contractors
to submit the required data electronically but only if the contractor maintains the data in an
electronic format that is useable and readable.
FAR Regulation: Ending Trafficking in Persons
On September 26, 2013, the Department of Defense, General Services Administration and the
National Aeronautics and Space Administration published a proposed rule in the Federal
Register to amend the Federal Acquisition Regulation (“FAR”) to among other things, prohibit
federal contractors, contractor employees, subcontractors and subcontractor employees from
engaging in any activities related to human trafficking, such as forced labor and prostitution. For
contracts that are not solely for commercially off-the-shelf items and where a portion of the
contract will be performed overseas, the contractor or successful offeror will be required to
develop a compliance plan and issue a certification of compliance at the time the contract is
awarded and annually thereafter. The requirements of a compliance plan and certification apply
to all subcontracts where the value of the services provided and/or supplies acquired outside the
United States exceeds $500,000.
The proposed rule mandates that the contractor compliance plans include “procedures to prevent
agents and subcontractors at any tier from engaging in trafficking in persons, and to monitor,
detect, and terminate any agents, subcontractors, or subcontractor employees that have engaged
in such activities.”
On November 21, 2013, the agencies extended the comment period until December 20, 2013.
On December 20, 2013, the Chamber filed joint comments with the Aerospace Industries
Association, the American Council of Engineering Companies, the National Defense Industrial
Association, the Professional Services Council, and TechAmerica.
On January 29, 2015, the FAR Council issued the final rule, which became effective March 2,
2015. The final rule sought comment on a recommendation by the Senior Policy Operating
Group for the FAR Council to consider a new definition of the term, “recruitment fees” to
supplement the regulation. On March 18, 2015, the Chamber submitted comments, which may
be accessed here: https://www.uschamber.com/comment/comments-gsa-draft-definition-
recruitment-fees-supplement-far-case-2013-001
On May 11, 2016, the FAR Council promulgated a proposed rule, requesting comments
regarding the definition of the term, “recruitment fees.” On July 11, 2016, the Chamber
submitted comments, which are available here:
https://www.uschamber.com/comment/comments-gsa-combating-trafficking-persons-definition-
recruitment-fees
The Chamber is active in promoting best practices to avoid human trafficking and is working to
root out both the cause and effects of human trafficking. However, the Chamber is concerned
about the creation of potential contractor and subcontractor liability without regard to the
November 10, 2016 Page 26
realities of global supply chains and various other provisions that complicate employer
recruitment processes without a tangible relationship to reducing human trafficking.
Employer and Consultant Reporting Under the LMRDA’s Persuader Regulations
On June 21, 2011, the Labor Department published a proposed rule, which will greatly narrow
the interpretation of the “advice” exemption. The proposed rule will significantly increase
regulation of law firms, trade associations, and others who communicate with employers
regarding union issues. Narrowing of the employer exception of its own employees’ activities
could also prove extremely problematic for employers and chill exercise of free speech rights.
On September 21, 2011, the Chamber filed comments, opposing the proposal.
The Chamber’s comments are available here:
https://www.uschamber.com/comment/comments-labor-department-new-proposed-
%E2%80%9Cpersuader%E2%80%9D-regulations
The Labor Department held a public meeting on May 24, 2010, to solicit opinions regarding
changes to employer reporting obligations under the LMRDA. The Department invited
comments on three separate but related issues: narrowing the “advice” exception, narrowing the
exception for activities of the employer’s own employees, and requiring electronic submission of
certain disclosure forms.
On March 24, 2016, the Department of Labor promulgated final regulations. Among the
changes that the Department has made: clarifying what persuader activities trigger reporting
(direct persuasion and four sub-categories of indirect persuasion: providing persuader materials;
directing supervisors; developing personnel policies and actions; and presenting union-avoidance
seminars); interpreting the statute so that “persuader” activities are reportable where the trade
association’s employees serve as presenters in union avoidance seminars or where they
undertake persuader activities for a particular employer or employers (other than by providing
off-the shelf materials to employer-members); announcing that employers are not required to file
a report solely by reason of their attendance at a union avoidance seminar; removing from the
reporting requirements employee surveys and union vulnerability assessments; and spelling out
that “protected concerted activities” are not within the scope of “object to persuade employees.”
In addition, the final regulations includes revised forms and instructions to require more detailed
reporting on persuader agreements and imposes a requirement that they be filed electronically.
On April 7, 2016, the Office of Management and Budget published approval of information
collection request under the Paperwork Reduction Act.
The U.S. Chamber Litigation Center has submitted amicus briefs in three court challenges: the
U.S. District Court for the Eastern District of Arkansas, the U.S. District Court for the District of
Minnesota, and the U.S. District Court for the Northern District of Texas.
On June 27, 2016, the U.S. District Court for the Northern District of Texas instituted a
nationwide injunction, stopping the proposal from taking effect.
November 10, 2016 Page 27
OSHA Revised Silica Standard
On September 12, 2013, the proposed revised silica dust standard was published in the Federal
Register. The proposed rule has two limits—one for the general industry and maritime sectors
and one for construction. The proposed revised silica standard reduces the general industry and
maritime Permissible Exposure Levels by half (to 50 µg/m 3
from 100 µg/m 3)
as well as adding
an Action Level of 25 µg/m 3 that will trigger various other programmatic requirements such as
exposure monitoring, providing medical exams to workers with high exposure, and training
workers about silica hazards. The construction industry PEL is also reduced to 50 µg/m 3 from
the current level of 250 µg/m 3.
This rulemaking attracted considerable attention from unions and other advocates who pushed
OSHA and the administration to release this proposal. In reality, the level of silica related deaths
and lung disease has plummeted over recent years and questions remain about whether
remaining problems are due to a lack of compliance with the current PEL, not the PEL itself.
Further questions remain about whether the anticipated PEL and Action Level are below the
level of detection, raising issues about whether this is a technologically feasible rule.
A key industry impacted by this rulemaking will be the hydraulic fracturing gas and oil industry
(fracking). In its initial submission to OIRA, OSHA did not include fracking in its economic
analysis. This was added during the time the proposal was under review at OIRA.
The Chamber’s comments were submitted on February 11, 2014 and the administrative hearings
began on March 18, 2014. The Chamber’s comments strongly opposed the proposal and urged
OSHA to withdraw it. In particular, the Chamber argued that the silica proposal is neither
technologically nor economically feasible; that OSHA has not established that a new standard is
necessary since there is still considerable non-compliance with the current threshold; and OSHA
has not established a significant risk necessary for this rulemaking since silica mortality rates
have declined 93% since 1968. The Chamber suggested that OSHA instead focus on improving
compliance rates and support the use of modern personal protective equipment that has been
shown to be effective and much less expensive than the engineering controls mandated by the
proposal under OSHA’s “hierarchal of control” policy.
The Chamber also participated in the hearings presenting 10 medical, technological, and
economic experts to rebut OSHA’s arguments. Unfortunately, the hearings were marred by
OSHA and the administrative law judge restricting the Chamber’s counsel from thoroughly cross
examining OSHA’s technical experts, but conversely subjecting the Chamber witnesses to
multiple rounds of questions from audience members and unlimited questions from OSHA. The
Chamber submitted extensive post hearing comments and objected to the way the hearings were
conducted.
On March 25, 2016, the final rule was published in the Federal Register with the same threshold
levels as proposed. Among the changes included in the final regulation that was never included
in the proposed regulation is a new requirement for covered employers to develop a written
exposure control plan. Furthermore, the standard for construction also includes a provision for a
competent person (i.e., a designated individual who is capable of identifying crystalline silica
November 10, 2016 Page 28
hazards in the workplace and who possesses the authority to take corrective measures to address
them) to implement the written exposure control plan. In addition, the final standard for
construction now includes a requirement that the written exposure control plan encompass
procedures used to restrict access to work areas, when necessary, to minimize the numbers of
employees exposed to respirable crystalline silica and their level of exposure.
OSHA Injury and Illness Reporting Regulation
On November 8, 2013, OSHA published a proposed rule to amend its current recordkeeping
regulations to add requirements for the electronic submission of illness and injury records
employers are required to keep under Part 1904. Under the proposal, businesses with 250 or
more employees would be required to electronically submit the records to OSHA on a quarterly
basis and establishments with 20 or more employees, in certain industries with high injuries and
illness rates would have to submit electronically their summaries of work-related injuries and
illnesses once a year. In the rulemaking, OSHA has announced that they intend to post the data
online. This will permit unions and any other outside party to use this information as part of a
corporate campaign to mischaracterize employers as having unsafe workplaces. On January 9,
2014, the Chamber participated in a public hearing held at the Department of Labor presenting
strong legal and policy arguments against the proposed regulation.
This proposal takes on new meaning when combined with the rulemaking to add a column to the
OSHA logs to capture MSDs. If both of these regulations are implemented, employers will then
be submitting MSD specific information to OSHA who will then post it on the Internet
unfiltered. This will be used by OSHA to support using General Duty Clause citations to go
after MSD issues. Employers will likely end up spending considerably more resources to
determine whether an MSD is in fact work-related.
On March 10, 2014, the Chamber submitted comments opposing the proposal and asking the rule
be withdrawn, which may be accessed here:
https://www.uschamber.com/sites/default/files/documents/files/USCC%20Comments%20on%20
OSHA%20Injury%20and%20Illness%20Electronic%20Reporting%20Rulemaking%20%28FIN
AL%29.pdf
On August 14, 2014, OSHA published a supplemental notice of proposed rulemaking to explore
adding provisions that will make it a violation for an employer to discourage employee reporting.
The supplemental would upend the statutory whistleblower protection provisions of Section
11(c) by giving OSHA the ability to issue citations against employers without an employee
complaint, i.e. no whistleblower.
On October 14, 2014, the Chamber submitted comments, calling for the supplemental to be
withdrawn, which may be accessed here:
https://www.uschamber.com/comment/comments-osha-rulemaking-improve-tracking-and-
workplace-injuries-and-illnesses
On May 12, 2016 OSHA published the final regulations. Employers with 250 or more
employees (includes part-time, seasonal, and/or temporary workers) in each establishment must
November 10, 2016 Page 29
submit electronically their 300, 300A, and 301 forms to OSHA annually basis (instead of
quarterly as originally proposed). Employers with more than 20 but less than 250 employees in
certain identified industries to electronically must submit their 300A form annually.
Employers who receive notification from OSHA must electronically submit their 300, 300A, and
301 forms to OSHA. OSHA will post the data from employer submissions on a publicly
accessible website – and vows not to include any information that could be used to identify
individual employees. Employers are also required to have a “reasonable” policy in place for
employees to report injuries or hazards. A “reasonable” policy is one where a “reasonable
employee would not be deterred.” OSHA then elaborated in the preamble that some of the
employer actions that might trigger citations under the anti-retaliation provision would include
drug testing seen as punitive or deterring an employee from reporting an injury, or safety
incentive programs that rely on a rate of injury, or absence of injuries, for rewarding employees.
On June 19, 2016, OSHA announced that the agency is delaying the effective enforcement date
for the anti-retaliation provisions from August 1, 2016, to November 1, 2016 and now to
December 1, 2016, to allow additional time for more outreach to employers, and provide more
educational materials and guidance.
On July 8, 2016, the National Association of Manufacturers and other business groups filed a
lawsuit against OSHA targeting the impact on drug testing and safety incentive programs under
the anti-retaliation provision.
Workplace Wellness Programs and Employment Discrimination
On May 8, 2013, the EEOC held a hearing to discuss the intersection between wellness programs
and anti-discrimination laws. Following the hearing, the EEOC held the record open for
submitted comments. On May 23, 2013, the Chamber submitted comments, urging the EEOC to
refrain from issuing additional guidance.
The comments may be accessed here: https://www.uschamber.com/comment/wellness-programs-
under-federal-equal-employment-opportunity-laws
On April 20, 2015, the EEOC released proposed regulations that describes how Title I of the
American with Disabilities Act applies to workplace wellness programs that are part of group
health plans and that include questions about employees’ health (such as questions on health risk
assessments) or medical examinations (such as screening for high cholesterol, high blood
pressure, or blood glucose levels) for employee-only coverage.
On June 19, 2015, the Chamber submitted comments, which may be accessed here:
https://www.uschamber.com/comment/comments-eeoc-how-ada-relates-employer-wellness-
programs
On October 30, 2015, the EEOC promulgated proposed regulations that amends the regulations
implementing Title II of the Genetic Information Nondiscrimination Act of 2008 as they relate to
workplace wellness programs and address the extent to which an employer may offer an
November 10, 2016 Page 30
employee inducements for the employee’s spouse who is also a participant in the employer’s
health plan to provide information about the spouse’s current or past health status as part of a
health risk assessment administered in connection with the employer’s offer of health services as
part of an workplace wellness program.
On January 28, 2016, the Chamber submitted comments, which may be accessed here:
https://www.uschamber.com/comment/comment-letter-the-eeoc-regarding-wellness-program-
incentives-under-the-genetic-information
On May 17, 2016, the EEOC promulgated the final ADA and GINA regulations. Among the
changes made:
ADA
Expands coverage to apply to wellness programs “offered as a benefit of
employment by employers that do not sponsor a group health plan or group
health insurance.”
Caps incentive at 30% of the cost that a 40-year-old non-smoker would pay for
self-only coverage under the second-lowest cost Silver Plan on the state or
federal health care Exchange in the location that the employer identifies as its
principal place of business for businesses for “stand-alone” wellness programs
(programs not integrated with health plans).
Clarifies that in-kind incentives and de minimus incentives are to be calculated in
setting the 30 percent limit, and notes that an employer is flexible to determine
the value of in-kind incentives “as long as the method is reasonable.”
Modifies the notice requirement to make it clear that the requirement applies to all
wellness programs “that ask employees to respond to disability-related inquiries
and/or undergo medical examinations” and imposes additional confidentiality
protections.
Denotes that an “employer would violate Title VII or the ADEA if the program
discriminates on the basis of race, sex, national origin, age, or any other grounds
prohibited by those statutes;” and provides a safe harbor so that “if a wellness
program requirement disproportionately affects individuals on the basis of some
protected characteristic, an employer may be able to avoid a disparate impact
claim by offering and providing a reasonable alternative standard.”
Applies the rule prospectively for the use of incentives and notice requirements to
“employer wellness programs as of the first day of the first plan year that begins
on or after January 1, 2017.”
GINA
Clarifies that “it is a violation of Title II of GINA for an employer to deny access
to health insurance or any package of health insurance benefits to an employee
and/or his or her family members, or to retaliate against an employee, based on a
spouse’s refusal to provide information about his or her manifestation of disease
or disorder to an employer-sponsored wellness program.”
States that there is no distinction between adult or minor children or between
biological and adopted children.
Urges employers to follow best practices in keeping data confidential,
November 10, 2016 Page 31
Expands coverage to include wellness programs “offered to spouses of all
employees regardless of whether the employee or spouse is enrolled in such a
plan; or offered as a benefit of employment to spouses of employees of
employers who do not sponsor a group health plan or group health insurance,”
Caps incentive at 30% of the cost that a 40-year-old non-smoker would pay for
self-only coverage under the second-lowest cost Silver Plan on the state or
federal health care Exchange in the location that the employer identifies as its
principal place of business for businesses for “stand-alone” wellness programs
(programs not integrated with health plans).
Broadens the “reasonable design” standard.
Replaces the phrase, “current or past health status” with “manifestation of disease
or disorder.”
Revises the apportionate scheme so that the “when an employee and and the
employee’s spouse are given the opportunity to enroll in an employer-sponsored
wellness program, the inducement to each may not exceed 30 percent of the total
cost of self-only coverage” with the incentive limits measured separately for each
individual and clarifies that the “inducement” may include reduction of
premiums, instead of cash, and
Expands the confidentiality protections.
Sex Discrimination Guidelines for Federal Contractors
On January 30, 2015, OFCCP issued a proposed rule to update its guidelines to reflect the
current state of law regarding sex discrimination. The proposed rule would clarify that adverse
employment actions based on sex-based stereotypes related to family caretaking responsibilities
or to gender norms and expectations are forms of sex bias, as is discrimination based on an
individual's gender identity. The proposal also would confirm that contractors must provide
workplace accommodations, and in certain situations health or disability insurance, for workers
“affected by pregnancy, childbirth, or related medical conditions.” In addition, the proposed rule
would clarify that sex-based compensation discrimination can result from “job segregation or
classification on the basis of gender, not just unequal pay for equal work”; confirm that
contractors “must provide equal benefits and equal contributions for male and female employees
participating in fringe-benefit plans”; and address the various forms of sexual harassment.
On April 14, 2015, the Chamber submitted comments, which may be accessed here:
https://www.uschamber.com/sites/default/files/us_chamber_ofccp_sex_discrimination_comment
s.pdf
On June 16, 2016, OFCCP promulgated the final regulations.
EEOC’s Changes to the EEO1-Form
On February 1, 2016, the EEOC announced that it was seeking a three-year Paperwork
Reduction Act (PRA) approval of a revised Employer Information Report (EEO-1) data
collection. The revisions include two components: Component 1, which collects the same data
that is gathered by the currently approved EEO-1 (e.g., ethnicity, race, and sex, by job category)
November 10, 2016 Page 32
and Component 2, which includes data on employee’s W-2 earnings and hours worked.
Beginning in 2018, filers with 100 or more employees (both private industry and federal
contractors) would be required to submit data in response to both Components 1 and 2(while
contractors with 50 to 99 employees would only submit data for Component 1).
On March 16, 2016, the EEOC held a public hearing to discuss proposed revisions to the EEO-1
data collection report, in which Camille Olson, chair of the Chamber’s equal employment
opportunity policy subcommittee testified, objecting to the proposal.
On April 1, 2016, the Chamber submitted comments, criticizing the proposal as unnecessary,
overly burdensome, lacking utility, and lacking confidentiality/privacy protections. The
comments may be accessed here: https://www.uschamber.com/comment/comments-eeoc-
proposed-revisions-the-employer-information-report
On July 14, 2016, the EEOC submitted a revised proposal to the Office of Information and
Regulatory Affairs (OIRA), as required by the Paperwork Reduction Act. The EEOC revised its
original proposal to make the new reporting deadline to be March 31st of each year to more
closely align with end-of-year W-2 information.
On August 15, 2016, the Chamber submitted comments to OIRA, which may be accessed here:
https://www.uschamber.com/comment/comments-the-omb-revision-the-employer-information-
report-eeo-1-form
On September 29, 2016, the EEOC released the final form with reporting instructions, which
were identical to the proposal submitted to OMB on August 15, 2016. Employers will be
required to report the new information beginning in 2018.
Rulemakings Underway
Adding New Column to Track Ergonomic Injuries Under OSHA Injury Logs
After the Clinton ergonomics regulation was struck down by Congress, the Bush OSHA
withdrew a revision to the recordkeeping standard that would have added a column on the OSHA
injury log to track work-related musculoskeletal disorders (WMSDs)—the kind of injuries
associated with ergonomic risks. On January 29, 2010, OSHA proposed a new regulation
reinstating such a column based on the definition for these injuries which was included in the
2001 recordkeeping standard. The Chamber leads the employer coalition responding to this
issue and filed comments opposing the proposal on March 30, 2010.
The coalition comments may be accessed here:
https://www.uschamber.com/comment/comments-proposed-rule-occupational-injury-and-illness-
recording-and-reporting-recordkeeping
A final regulation went to the Office of Management and Budget’s Office of Information and
Regulatory Analysis, on July 14, 2010. On July 21, 2010, the Chamber, with other groups, met
with OIRA to reiterate our belief that OSHA’s economic analysis was woefully inadequate. On
January 25, 2011, OSHA announced that they were “temporarily” withdrawing the proposal
November 10, 2016 Page 33
from OMB review to solicit more input from small businesses. This is a tacit admission that they
should have conducted a small business review panel before issuing the proposed regulation—a
point we made in our comments.
The Department of Labor, in conjunction with the Small Business Administration’s Office of
Advocacy, held a series of three teleconferences in April, 2011 to reach out to the small business
community for input.
The Consolidated Appropriations Act, 2012 (P.L. 112-74) included a defunding rider blocking
the Department of Labor from using any funds to proceed with this regulation during FY 2012
(Oct. 2011-Oct. 2012). That rider, which had been extended under the succeeding Continuing
Resolutions, expired on January 18, 2014, meaning that OSHA is now free to finalize this
regulation.
The Spring 2016 Regulatory Agenda, published on May 18, 2016, indicated that the agency has
put this item on the long-term action list, effectively meaning that the administration does not
plan to act on this rulemaking.
Genetic Information Nondiscrimination – Title I Regulation of Health Risk Assessments
On October 7, 2009, the Departments of Treasury, Labor, and Health and Human Services issued
interim final regulations implementing certain provisions of Title I of the Genetic Information
Nondiscrimination Act (GINA). Included in these regulations is a very broad interpretation of
“underwriting” that effectively prohibits employers from offering incentives to employees who
participate in health risk assessments (HRAs) if the HRA asks about family medical history. The
interim final rules went into effect on December 7, 2009. The Chamber has joined with other
business organizations in exploring strategies to address this important matter.
We also filed comments critical of the treatment of health risk assessments and related points on
January 5, 2010, that may be accessed here:
https://www.uschamber.com/comment/comments-genetic-information-regulations-impacting-
health-risk-assessments
Compensation Data Collection Tool
On August 10, 2011, the OFCCP published an Advance Notice of Proposed Rulemaking to
develop a replacement for the EO survey to implement Executive Order 11246. The ANPRM
solicits comments from the public on 15 separate questions. Perhaps most alarming, the agency
in one of their questions has raised the possibility that businesses bidding on future Federal
contracts will need to submit compensation data as part of the Request for Proposal process.
OFCCP has also stated their intentions to use this type of compensation data for research, such as
analyzing industry trends. On October 11, 2011, the Chamber submitted comments seeking
withdrawal of the regulation.
November 10, 2016 Page 34
The comments may be accessed here:
https://www.uschamber.com/comment/comments-non-discrimination-compensation-
compensation-data-collection-tool-advanced-notice
On April 8, 2014, President Obama issued a Presidential Memorandum to instruct the Secretary
of Labor to develop regulations within 120 days to require federal contractors and subcontractors
to submit to the Department of Labor summary data on the compensation paid their employees,
including data broken down by race and sex. On August 8, 2014, the Office of Federal Contract
Compliance Programs promulgated a proposed rule, developing a compensation data collection
tool. Under the proposal, companies that file EEO-1 reports with the federal government, and
that have more than 100 employees and hold federal contracts or subcontracts worth $50,000 or
more would have to submit summary pay data on their workforces broken out by race, sex and
ethnicity to the OFCCP in an “Equal Pay Report.” The report would require the submission of
summary data on employee compensation by sex, race, ethnicity, specified job categories, and
other relevant data points such as hours worked, and the number of employees. Comments were
originally due by November 6, 2014. On October 31, 2014, OFCCP extended the public
comment period until January 5, 2015.
On January 5, 2015, the Chamber submitted comments, which may be accessed here:
https://www.uschamber.com/comment/comments-ofccp-government-contractors-requirement-
report-summary-data-employee-compensation
The Spring 2016 Regulatory Agenda, published on May 18, 2016, indicates that the proposal has
been moved to “long term actions.”
Treasury Department Acquisition Regulations Proposed Contracting Language for Minority and
Women Inclusion under Dodd-Frank Act
On August 21, 2012, the Department of the Treasury proposed contracting language to
implement the requirement in Section 342 of the Dodd-Frank Act that all contractors to agencies
covered by the Act commit to “ensure, to the maximum extent possible, consistent with
applicable law, the fair inclusion of minorities and women in the workforce.” This language will
be inserted into all service contracts and subcontracts worth more than $150,000. If requested by
the contracting officer, contractors would have to provide, within 10 days, extensive
demographic and supporting information detailing their, and their subcontractors’, good faith
efforts to meet the requirements of the contract language. The Chamber submitted comments on
October 22, 2012, which expressed concerns about some of the vague terms in the proposed
language; the impact this language would have on subcontractors, many of whom will not have
had to deal with similar requirements associated with other affirmative action requirements; the
possibility of more involvement from DOL’s Office of Federal Contract Compliance Programs
than the Act permits; and the inadequacy of the Regulatory Flexibility Act analysis.
The comments may be accessed here: https://www.uschamber.com/comment/comments-dept-
treasury-contract-clause-minority-and-women-inclusion-contractor-workforce
November 10, 2016 Page 35
Worker Classification Survey
On January 11, 2013, the Wage and Hour Division (WHD) requested comments under the
Paperwork Reduction Act review of the agency’s proposal to collect information “about
employment experiences and workers’ knowledge of basic employment laws and rules so as to
better understand employees’ experience with worker misclassification.” The survey is expected
to support the Department’s announced Right to Know under the Fair Labor Standards Act
rulemaking as well as the ongoing Employee Misclassification Initiative. On March 1, 2013, the
Chamber, submitted a request for extension for the comment period as the survey documents and
instrument were not made available on the Internet. Due to the significant impact this survey will
have on key WHD activities, the Chamber and other employer associations took the unusual step
on March 12, 2013, of submitting comments to the Paperwork Reduction Act review of the
instrument and the process for conducting it.
The comments may be accessed here:
https://www.uschamber.com/comment/comments-department-labor-information-collection-
request-worker-classification-survey
On November 4, 2013, the Department of Labor submitted the Wage and Hour Division
“Worker Classification Survey” information collection request to the Office of Management and
Budget for review and approval for use in accordance with the Paperwork Reduction Act. On
December 9, 2013, the Chamber submitted comments.
The Chamber’s comments may be accessed here:
https://www.uschamber.com/sites/default/files/documents/files/USCC%20Comments%20on%20
OSHA%20Silica%20Proposed%20Rule%20final.pdf
Chemical Management and Permissible Exposure Limits
On October 10, 2014, OSHA issued a request for information (RFI), stating that the agency
wants to explore other possible approaches that may be relevant to future strategies to reduce and
control exposure to chemicals in the workplace; and inform the public and obtain public input on
the best methods to advance the development and implementation of approaches to reduce or
eliminate harmful chemical exposures in the workplace.
On October 9, 2015, the Chamber submitted comments, which may be accessed here:
https://www.uschamber.com/comment/comments-osha-chemical-management-and-permissible-
exposure-limits
Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of
Each Recordable Injury and Illness (Volks)
On July 29, 2015, OSHA issued a proposed rule “clarifying” an employer’s continuing
obligation to make and maintain an accurate record of each recordable injury and illness. OSHA
is responding to a court decision, Volks II, which held that a citation for failing to record an
injury or illness after the six month period that the regulations require the recording is barred by
November 10, 2016 Page 36
the OSH Act’s statute of limitations. In the rulemaking, OSHA is proposing changes to its
recordkeeping regulations to “clarify” that the duty to make and maintain an accurate record of a
work-related illness or injury extends the statute of limitations during which a citation can be
issued from the Congressionally established six months to the five year period for maintaining
records.
On October 28, 2015, the Chamber submitted comments, which may be accessed here:
https://www.uschamber.com/sites/default/files/documents/files/nam_chamber_osha_comments_
osha_2015_0006.pdf
On October 19, 2016, the regulation is currently undergoing final review at OIRA.
Department of Labor Inflation Adjustment Act Catch-Up Adjustments for Penalties
On July 1, 2016, the Department of Labor issued interim final regulations implementing the
Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. For the first time,
these regulations would update the civil penalties under the OSH Act. Comments were due by
August 15, 2016.
Anticipated Rulemakings
Hours Worked Under the Fair Labor Standards Act
The Wage and Hour Division has announced that they are preparing a request for information
(RFI) to seek information from stakeholders on the use of portable electronic devices by
employees away from work and outside of scheduled work hours. The RFI could assist the
Department of Labor as a supplement to the rulemaking on defining and delimiting the
exemptions for executive, administrative, professional, outside sales, and computer professionals
by targeting individuals who use electronic devices at home to conduct work and currently do
not get paid in order to be categorized as working overtime.
The Spring 2016 Regulatory Agenda, indicates that the RFI was to be published July, 2016.
Revocation of Obsolete Permissible Exposure Limits (PELs)
OSHA has announced plans to revoke a small number of obsolete permissible exposure limits
(PELs) for chemicals contained in the 29 CFR 1910.1000 Table Z-1. In particular, the Agency is
proposing revocation of a small number of chemical PELs for which the OSHA PEL
substantially exceeds other recommended occupational exposure limits and for which the agency
has evidence that workers are not generally being exposed at a level approaching the OSHA PEL
(e.g., employers have not been cited for violation of the PEL for some time). The agency is
particularly concerned that the continued existence of these obsolete PELS imparts a false level
sense of security to workers and employers who mistakenly believe that the PEL represents the
level at which there are no adverse health effects. OSHA expects that upon revocation of these
outmoded and ineffective PELS that it may use other enforcement tools (e.g., the General Duty
November 10, 2016 Page 37
clause) in limited circumstances should worker health and safety be jeopardized. A Request for
Information was projected for July, 2016.
Significant Non-Regulatory Activities
Department of Labor
Proposed Interpretation of “Feasible” Under OSHA’s Noise Exposure Standard
On October 19, 2010, OSHA published in the Federal Register a proposed new interpretation of
the term “feasible” as it applies to administrative and engineering controls under the General
Industry and Construction Noise Exposure standards. OSHA’s enforcement policy gives
employers considerable latitude to rely on personal protective equipment (PPE--such as ear plugs
or ear muffs) when noise protection is required rather than forcing employers to exhaust the
opportunities for administrative (such as schedule rotations), or engineering (such as sound
dampening or other technology) controls. Under the new interpretation, administrative and
engineering controls would have been considered economically feasible if “implementing such
controls will not threaten the employer’s ability to remain in business, or if such a threat to
viability results from the employer’s failure to meet industry” standards.
On January 19, 2011, OSHA announced the withdrawal of this proposal. The Chamber
submitted preliminary comments objecting to this action as imposing unnecessary costs on
employers who are already protecting their employees appropriately from noise hazards just
before the announcement of withdrawal. An independent economic analysis concluded that the
potential impact of this proposal on employers would be more than $1 billion.
The Chamber’s comments can be accessed here:
https://www.uschamber.com/comment/comments-interpretation-osha%E2%80%99s-provisions-
feasible-administrative-or-engineering-controls
OSHA Memo on Whistleblowers and Employer Safety Incentive Programs
On March 12, 2012, OSHA issued a memorandum to regional administrators that outlines four
scenarios that OSHA believes would constitute violations of the whistleblower protections under
Section 11(c). Among the scenarios is one where employers implement an incentive program
that rewards employees for low injury rates or remaining injury free for a period of time.
Incentive programs are not mentioned anywhere else in the statute or regulations. OSHA has
thus created a consequence for employers who have them without any authority or providing any
supporting data or evidence. This memo is now incorporated into the non-retaliation provision
of the new regulation on reporting injuries and illnesses (see OHSA Injury and Illness Reporting
Regulation).
November 10, 2016 Page 38
OSHA Letter of Interpretation Permitting Union Representatives to Accompany an OSHA
Inspector at Non-Union Workplaces
On February 21, 2013, OSHA issued a letter of interpretation responding to a request from the
United Steel Workers that said a union representative is permitted to accompany an OSHA
inspector during a walk-around inspection at a non-union workplace. Current regulations make
clear that any employee representative “shall be” an employee of the company. Therefore a non-
union workplace would not have a union representative. This is a dramatic reversal of policy
and clearly aligns OSHA with union attempts to use OSHA inspections as organizing tools
against non-union employers. Furthermore, it was done as a letter of interpretation, not a
rulemaking so there was no opportunity for those who will be impacted to provide input, or
requirement for OSHA to justify its action. More importantly, there is no clear way to challenge
this or overturn it. On June 12, 2013, the Coalition for Workplace Safety sent a letter to the
Department of Labor, requesting withdrawal of the interpretation letter.
Changes to Strategic Partnership Programs
On November 6, 2013, OSHA issued Directive CSP 03-02-003, which makes changes to the
Strategic Partnership Program. According to the directive, OSHA will now require partnership
agreements to address worker involvement and safety and health management systems as part of
each agreement’s 13 core elements. Under the previous directive, management systems were not
an option. The directive also provides that new or renewed strategic partnership agreements may
not include programmed inspections deferrals or deletions that go beyond what OSHA allows for
any employer who is inspected. The prior directive offered partnership members up to a six-
month deferral from programmed inspections. During that deferral period, members were
expected to make workplace safety and health improvements or seek compliance assistance.
In addition, OSHA no longer offers an additional 10 percent “good faith” penalty reduction for
partnership members that have established safety and health management systems. Companies in
the program still qualify for penalty reductions available to all employers.
informACTION App Challenge (WHD and OSHA)
On July 12, 2011, the Department of Labor announced a contest, the “informACTION app”
challenge, which requires developers to use compliance data from the Occupational Safety and
Health Administration and the Wage and Hour Division to provide information to workers and
the general public targeting the hotel, motel, restaurant, and retail industries. In designing the
app, the Department is “encouraging developers to combine DOL data with other publicly
accessible data feeds from around the web.” If a developer uses an outside data set, the accuracy
or veracity of the data being provided is not clear. The informACTION challenge is meant to
target “bad actors” in the employer community, but may actually damage an employer’s
reputation and good standing in the community if the information conveyed is incomplete, or
inaccurate.
November 10, 2016 Page 39
Persuader Reporting Orientation Program (OLMS)
The Department of Labor initiated the Persuader Reporting Orientation Program (PROP) in
January 2011 to “provide compliance assistance to employers and labor relations consultants
who are likely to enter reportable agreements or arrangements pursuant to Section 203 of the
Labor-Management Reporting and Disclosure Act.” PROP should be viewed in conjunction with
the proposed “persuader” regulation, narrowing the “advice” exception which was promulgated
on June 21, 2011.
Under PROP, DOL will examine union election petitions filed with the NLRB and send
information via a letter to employers and their representatives informing them of their persuader
reporting obligations under Section 203 of the Labor-Management Reporting and Disclosure
Act. This letter makes scant reference to the “advice” exception, and includes references to
LM-10 reporting obligations that cover certain payments to and arrangements with unions or
union officials.
U-VISA Determinations (WHD)
On March 15, 2010, the Secretary of Labor announced that DOL would begin to certify U-Visas
for victims of employment based crimes. Traditionally, U-Visas are granted to undocumented
individuals who are victims of violent crimes such as assault, rape, kidnapping, trafficking, etc.
Under a U-Visa, an individual may remain in the U.S. for up to four years. The WHD will be
tasked with certifying U-Visa requests during the course of their wage and hour investigations.
Memorandum of Understanding for Employee Misclassification Initiative (WHD)
On September 19, 2011, the Wage and Hour Division, the Internal Revenue Service, and the
labor commissioners and other agency leaders of the states of Connecticut, Maryland,
Massachusetts, Minnesota, Missouri, Utah, and Washington announced that they have entered
into a memorandum of understanding to curb the practice of employee misclassification. The
Department of Labor has also entered into similar agreements with the states of Alabama,
Alaska, Arkansas, California, Colorado, Connecticut, Florida, Hawaii, Idaho, Illinois, Iowa,
Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Montana,
New Hampshire, New Mexico, New York, Oregon, Rhode Island, South Dakota, Texas, Utah,
Vermont, Virginia, Washington, Wisconsin, and Wyoming.
The Wage and Hour Division has revamped the agency’s complaint process to focus on
industries that “employ particularly vulnerable workers who don’t complain.” The agency has
announced initiatives focusing on Tennessee hotels and motels, North Carolina residential care
facilities, Florida and Mississippi agriculture, New Jersey gas stations, Tampa FL restaurants,
Connecticut and Rhode Island construction sites, grocery stores in Alabama and Mississippi, and
child labor violations in the movie theater industry.
November 10, 2016 Page 40
In addition, the Wage and Hour Division has announced an enforcement initiative to combat
misclassification of independent contractors at nail salons in the Seattle metropolitan area.
Aggressive Strategic Plans (OFCCP)
The Director of the Office of Federal Contract Compliance Programs (OFCCP) laid out an
aggressive “strategic plan.” For example, one of the targeted goals is to “increase workers’
incomes and narrow wage and income inequality,” while another is to “ensure fair and high
quality work life environments.” OFFCP will not only enforce systemic discrimination claims,
but also claims of individual discrimination. OFCCP will further broaden enforcement efforts
through more use of corporate-wide multi-establishment reviews and industry-specific reviews.
Guidance on the Applicability of the Worker Adjustment and Retraining Notification Act to
layoffs that may occur among Federal Contractors, including in the Defense Industry as a Result
of Sequestration (ETA)
On July 30, 2012, the Assistant Secretary of the Employment and Training Administration sent
guidance to state workforce agencies and administrators, indicating that due to the
“unforeseeable circumstance” test, it would be inappropriate for federal contractors, including
those in the defense industry to notify their employees about layoffs that could result from
federal budget cuts due to sequestration that may occur in January 2013.
On September 28, 2012, the Office of Management and Budget issued a memorandum stating
that if an agency terminates or modifies a contract, and the contractor must close a plant or lay
off workers en masse, the company could treat employee compensation costs for WARN Act
liability, attorney’s fees and other litigation costs as allowable costs to be covered by the
contracting agency so long as the contractor has followed a course of action consistent with the
Labor Department’s guidance.
Complying with Nondiscrimination Provisions: Criminal Record Restrictions (OFCCP)
On January 29, 2013, OFCCP issued Directive No. 306, advising federal contractors and
subcontractors about potential discriminatory liability that could result from using criminal
records as a screening device.
OFCCP Procedures for Reviewing Contractor Compensation Systems and Practices (OFCCP)
On February 26, 2013, OFCCP issued Directive 307 on "Procedures for Reviewing Contractor
Compensation Systems and Practices." This was issued in conjunction with OFCCP’s rescission
of its compensation standards and voluntary guidelines. Now, instead of using standard
analytical procedures in pursuing compensation discrimination claims, Directive 307 states that
the OFCCP will pursue these claims on a case-by-case basis. Directive 307 will give OFCCP
more flexibility, which it will likely use to its advantage as part of its aggressive enforcement
agenda.
November 10, 2016 Page 41
Calculating Back Pay as Part of Make-Whole Relief for Victims of Employment Discrimination
(OFCCP)
On July 17, 2013, OFCCP issued Directive 310 on "Calculating Back Pay as a Part of Make-
Whole Relief for Victims of Employment Discrimination." Directive 310, effective immediately,
provides guidance to its compliance officers regarding the methodology for the calculation of
back pay awards to federal contractor applicants and employees allegedly subject to
discrimination.
Agricultural Workers (WHD)
On May 9, 2013, the Wage and Hour Division launched an initiative in Illinois and Missouri that
places an emphasis on enforcement and education for growers, farm labor contractors,
agricultural brokers, and processors which help these parties comply with the Fair Labor
Standards Act, the H-2A program, the Migrant and Seasonal Agricultural Worker Protection Act,
and the Occupational Safety and Health Act’s field sanitation standards.
OFCCP Directive on Bias Based on Gender Identity or Sexual Orientation (OFCCP)
On February 26, 2013, OFCCP issued Directive 2014-2, "Providing Guidance to OFCCP Staff or
Federal Contractors on Enforcement and Compliance Policy or Procedures." The new directive
clarifies that the OFCCP will follow the Equal Employment Opportunity Commission's ruling in
Macy v. Holder, EEOC, No. 0120120821, 4/20/12, in which the Commission recognized bias
based on gender identity as cognizable sex discrimination under Title VII of the 1964 Civil
Rights Act.
Memo on Implementation of the President’s Executive Order on Fair Pay and Safe Workplaces
On March 5, 2015, OMB and the Department of Labor issued a joint memorandum to Executive
federal agencies directing agencies to start hiring Labor Compliance Advisors within 90 days.
The memo also declares that Labor Compliance Advisors will “have responsibilities assisting
contracting officers in implementing Executive Order 13627, Strengthening Protections Against
Trafficking in Persons in Federal Contracts.”
Administrator’s Interpretation No. 2015-1, Independent Contractor Status (WHD)
On July 15, 2015, the Wage and Hour Division published Administrator’s Interpretation (AI) No.
2015-1, “The Application of the Fair Labor Standards Act’s ‘Suffer or Permit’ Standard in the
Identification of Employees Who are Misclassified as Independent Contractors.” The AI spells
out the criteria the Department of Labor will use to evaluate whether an individual is properly
classified as an “employee” or “independent contractor,” and uses examples for illustrative
purposes. The guidance states that possessing control in the “economic realities test” is not a
determining factor, but should be considered part of a ‘totality of the circumstances’ test.
Arguably, by interpreting the criteria in such a manner, the scope of who is an “employee” is
broadened to encompass individuals that are currently considered to be “independent
November 10, 2016 Page 42
contractors.” This also gives employers less certainty when they try to use independent
contractors. The AI makes clear that WHD views the definition of employee very expansively.
Administrator’s Interpretation No. 2016-1, Joint Employment under the Fair Labor Standards
Act and Migrant and Seasonal Agricultural Worker Protection Act (WHD)
On January 20, 2016, the Wage and Hour Division published Administrator’s Interpretation (AI)
No. 2016-1, “Joint Employment under the Fair Labor Standards Act and the Migrant and
Seasonal Agricultural Worker Protection Act.” The AI spells out criteria the Department of
Labor will use when evaluating joint employer status.
According to the AI, there are two types of joint employment: horizontal and vertical
employment. “Horizontal joint employment” occurs when “an employee has employment
relationships with two or more employers and the employers are sufficiently associated or related
with respect to the employee such that they jointly employ the employee,” whereas “vertical
joint employment” is defined as “where the employee has an employment relationship with one
employer (typically a staffing agency, subcontractor, labor provider, or other intermediary
employer) and the economic realities show that he or she is economically dependent on, and
thus, employed by, another entity involved in the work.”
The AI provides factors the DOL will consider when analyzing joint employment status and uses
examples for illustrative purposes. The guidance interprets the joint employer doctrine under the
Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act
differently than the National Labor Relations Board. Arguably, as the WHD’s interpretation is
broader than the NLRB’s, the guidance is inconsistent, which could give rise to joint
employment being found under the FLSA but not the NLRA by the relevant agencies.
Form LM-21 Special Enforcement Policy (OLMS)
On April 13, 2016, the Office of Labor-Management Standards (OLMS) issued a special
enforcement policy, in which the agency stated that for those filers of Form LM-20 who are also
required to Form LM-21, OLMS will not take “enforcement action based upon a failure” to
complete Part B and Part C of Form LM-21.
Mega Construction Project Program (OFCCP)
On September 23, 2016, the Office of Federal Contract Compliance Programs announced
expansion of the Mega Construction Project Program. According to OFCCP, the expanded Mega
Construction Project Program “focuses on engagement and compliance in lieu of revised
regulations,” referring to a proposal to update the agency's construction contractor rules that has
now been placed on hold. The MCP program will focus on providing technical assistance to help
contractors comply with their affirmative action and equal employment opportunity obligations,
connecting contractors with local sources for minority and female workers, and conducting
compliance evaluations.
November 10, 2016 Page 43
Equal Employment Opportunity Commission
Credit and Criminal History Background Checks
The Equal Employment Opportunity Commission (EEOC) issued a complaint against an
employer stemming from the alleged disparate impact of using credit and criminal history
background checks as part of their hiring process. EEOC’s target of background checks by
employers has become a prominent focus of the previous chair of the EEOC, with the EEOC
holding a hearing to examine the issue of using credit history on October 20, 2010 and a hearing
examining criminal history background checks on July 26, 2011. If successful in its complaint,
the EEOC could use the same approach to target nation-wide employers who use background
checks in their hiring process.
On April 25, 2012, the EEOC voted 4-1 to approve new enforcement guidance related to
consideration of arrest and conviction records in employment decisions.
In June 2013, the EEOC issued two additional complaints against employer regarding their use
of criminal background checks.
On March 10, 2014, the EEOC in conjunction with the Federal Trade Commission jointly
published two technical assistance documents that explain how the federal laws enforced by the
respective agencies apply to background checks performed for employment purposes:
“Background Checks: What Employers Need to Know” and “Background Checks What Job
Applicants and Employees Should Know.”
Religious Garb and Grooming in the Workplace
On March 6, 2014, the EEOC published technical assistance publications, including a Frequently
Asked Questions (FAQ) document, which explains how Title VII’s religious discrimination
provision is applicable to workplace scenarios.
Enforcement Guidance on Pregnancy and Related Issues
On July 14, 2014, the EEOC published enforcement guidance on pregnancy and related issues,
and technical assistance publications including a Frequently Asked Questions (FAQ) document
and Fact Sheet, which requires employers to provide a reasonable accommodation as required by
the ADA to all limitations related to pregnancy.
On June 25, 2015, the EEOC revised its enforcement guidance to reflect the Supreme Court’s
holding in Young v. United Parcel Service, Inc. in order to reflect the court's conclusion that
women may be able to prove unlawful pregnancy discrimination if the employer accommodated
some workers but refused to accommodate pregnant women. The court said employer policies
that don't intend to discriminate based on pregnancy nevertheless may violate the PDA if the
policy imposes significant burdens on pregnant employees without a sufficiently strong
justification.
November 10, 2016 Page 44
American with Disabilities Act Enforcement
On July 23, 2015, the EEOC entered into a Memorandum of Understanding with the Justice
Department to streamline their coordination of disability bias complaint investigations and
increase their collaboration on guidance, outreach, and training on disability discrimination
issues.
Proposed Enforcement Guidance on Retaliation and Related Issues
On January 21, 2016, the EEOC issued proposed enforcement guidance addressing retaliation
and related issues under federal employment antidiscrimination laws. Comments were due on
February 26, 2016.
On August 25, 2016, the EEOC released final guidance.
Addendum to the Revised Memorandum of Understanding between the Departments of
Homeland Security and Labor Concerning Enforcement Activities at Worksites
On May 16, 2016, the Department of Homeland Security's Immigration and Customs
Enforcement has promised to notify the EEOC and the NLRB of any actions it takes at a
worksite where employers use the threat of deportation to chill unionization and other concerted
workplace activity protected under the National Labor Relations Act.
Proposed Enforcement Guidance on National Origin Discrimination
On June 1, 2016, the EEOC issued proposed enforcement guidance addressing national origin
discrimination, including new sections on human trafficking, job segregation, and intersectional
discrimination. On July 1, 2016, the Chamber submitted comments, which may be accessed
here: https://www.uschamber.com/comment/comments-eeoc-the-proposed-enforcement-
guidance-national-origin-discrimination
National Labor Relations Board
Protected Concerted Activity Website
The National Labor Relations Board has launched a webpage that provides case examples of
protected concerted activity, the right of employees to act together for their mutual aid and
protection, even if they are not in a union.
Memorandum of Understanding with Justice Department
On July 9, 2013, the National Labor Relations Board entered into a memorandum of
understanding with the Justice Department’s Civil Rights Division’s Office of Special Counsel
for Immigration-Related Unfair Employment Practices to share information, refer matters to each
other and coordinate investigations when deemed appropriate.
November 10, 2016 Page 45
Letter of Agreement Between The Office of General Counsel and the Ministry of Foreign Affairs
of Mexico
On August 1, 2013, the Office of General Counsel announced that on behalf of the Board, he has
signed a letter of agreement with the Mexican Foreign Ministry to provide for cooperative efforts
to provide Mexican workers in the United States, and their employers information, guidance, and
access to education regarding their rights and responsibilities under the National Labor Relations
Act.
Addendum to the Revised Memorandum of Understanding between the Departments of
Homeland Security and Labor Concerning Enforcement Activities at Worksites
On May 16, 2016, the Department of Homeland Security's Immigration and Customs
Enforcement has promised to notify the EEOC and the NLRB of any actions it takes at a
worksite where employers use the threat of deportation to chill unionization and other concerted
workplace activity protected under the National Labor Relations Act.
November 10, 2016 Page 46
Immigration Regulatory Activity
Completed Rulemakings
H-2B Program Rule and Wage Methodology
The Labor Department has long sought to reengineer the H-2B program, which is used to hire
temporary nonagricultural workers. DOL seeks to institute a new regulatory system to address
what the agency believes is insufficient worker protections in the current H-2B operational and
enforcement guidelines, as well as by finalizing a new wage methodology regulation. To
effectuate these desired changes, DOL promulgated two regulations, one being a general
program rule (final rule published February 21, 2012) and the other a wage rule (final rule
published January 19, 2011), that are intertwined both in policy substance and procedural
challenges, and both had been the subject of ongoing litigation as well as action by Congress in
the appropriations process. For an excellent summary of the procedural and legal history of this
ongoing battle, please read the comment of the H-2B Workforce Coalition, where the Chamber
sits on the Executive Committee, regarding a recent effort of the DOL to issue a “declaratory
order” attempting to establish the agency’s authority in the H-2B space. See February 2, 2015,
letter: https://www.uschamber.com/comment/coalition-comments-department-labor-their-notice-
intent-issue-declaratory-order
In addition to our coalition comments, the Chamber filed its own comment regarding the
Secretary of Labor’s intent to issue a “declaratory order,” which can be accessed here:
https://www.uschamber.com/comment/comments-department-labor-their-notice-intent-issue-
declaratory-order
On March 4, 2015, a federal judge in Florida ruled that the Department of Labor does not have
the authority to issue regulations governing the H-2B visa program. At that time, DOL and DHS
suspended processing H-2B petitions to determine how to respond to the ruling from the court.
On March 18, 2015, DOL requested that the judge issue a temporary stay on the injunction until
April 15, 2015, so that the program could continue operating while the Department of Labor and
the Department of Homeland Security promulgate replacement regulations. The judge granted
DOL’s request to stay the enforcement of the injunction. On March 23, 2015, the Employment
and Training Administration Office of Foreign Labor Certification issued Frequently Asked
Questions (FAQs) to assist employers during the stay. On April 29, 2015, DOL and DHS jointly
issued an interim final rule to govern the operation of the H-2B program and a final rule on wage
determinations for the H-2B program.
On June 29, 2015, the Chamber filed comments in response to the joint DOL and DHS rule,
which can be accessed here: https://www.uschamber.com/sites/default/files/dol_dhs_h-
2b_program_comment_uscc_on_ifr_6-29-2015.pdf
On December 18, 2015, President Obama signed P.L. 114-13, the “Consolidated Appropriations
Act, 2016.” The law includes several provisions related to the H-2B temporary nonagricultural
guestworker program that helped limit the negative impact of the most recent H-2B regulations
November 10, 2016 Page 47
issued jointly by DOL and DHS. These provisions directed DOL to accept private wage surveys
as a basis for setting the prevailing wage level for H-2B workers. These provisions also
prevented DOL from implementing their proposed regulatory requirements associated with the
concepts of “corresponding employment” and the“three-quarter guarantee” that would have had
the perverse effect of inflating required wage levels significantly higher than market rates and
would have had the potential to force employers to pay individuals for hours which they did not
work. These provisions also defined a “temporary need” as 10 months or less, rather than the
DOL’s proposal, which would have limited it to nine months. Lastly, P.L. 114-13 included a
returning worker exemption that allowed certain individuals who had served as an H-2B worker
in the prior 3 fiscal years to return to the U.S. as an H-2B worker without counting towards the
annual numerical limit, which provided H-2B employers with much needed relief from the
arbitrary 66,000 annual quota.
Wage Rule Summary:
On January 19, 2011, ETA published a final rule regarding a new wage methodology for all
temporary nonagricultural H-2B workers. The new rule would have established that employers
were obligated to pay the greater of the Service Contract Act, the Davis-Bacon Act, or mean
occupational wages, regardless of whether the employer was working on a federal contract. The
effective date was changed various times and was ultimately blocked from being implemented
by Congress for fiscal years 2012, 2013, and 2014, expiring January 17, 2014. The Final Wage
Rule that was published in the Federal Register on April 29, 2015 sets the prevailing wage as the
mean wage for the occupation in the area of employment as derived from the Occupational
Employment Statistics survey from the Bureau of Labor Statistics. The rule no longer permits
wage determinations to be made using the Service Contract Act (SCA) or the Davis Bacon Act
(DBA) as wage sources except for those employers subject to SCA and DBA and it establishes
new requirements if businesses desire to use private wage surveys for their H-2B workers. The
Chamber is considering various options to address the concerns with the new stringent
requirements regarding the use of private wage surveys in the H-2B program.
The Chamber’s comments on the H-2B wage rule proposal may be accessed here:
https://www.uschamber.com/comment/comments-wage-methodology-temporary-non-
agricultural-employment-h-2b-program-0 and here:
https://www.uschamber.com/comment/comments-wage-methodology-temporary-non-
agricultural-employment-h-2b-program
Program Rule Summary:
On February 21, 2012, ETA published a final rule regarding large-scale revisions for the
temporary nonagricultural employment of H-2B workers in the United States, which was
virtually unchanged from the proposed rule. The new rule created a new concept of
“corresponding employment,” establishing that instead of similarly situated employees being
similarly compensated, individuals working in “corresponding” jobs must be compensated the
same even when the jobs do not have the same duties and minimum requirements. In addition,
the new rule imposed a variety of cumbersome rules borrowed from the seasonal agricultural
worker program, awarded the Wage and Hour Division new authority to investigate
November 10, 2016 Page 48
corresponding employment, and established that DOL has unlimited authority to require more
advertising or recruitment beyond the parameters identified in the regulations. The
implementation of this rule was barred by a nationwide injunction obtained when Bayou
Landscaping, a Florida landscaping firm, filed a lawsuit in in the Northern District of Florida.
The protracted litigation efforts in the Northern District of Florida resulted in both the 2012
program rule and the 2008 program rule being vacated by the court in the Northern District of
Florida, which prompted DOL and DHS to issue an interim final rule on April 29, 2015. In the
agencies’ own words, the rule is “virtually identical to the 2012 final rule that DOL
developed…” The striking similarity between the provisions in the 2012 final rule with those
contained in the 2015 IFR means that many of the same problems the Chamber identified in the
2012 rule exist in the 2015 IFR e.g., corresponding employment issues, unchecked authority to
require additional recruitment by employers, etc.
The Chamber’s comments on the H-2B program rule that was finalized by DOL in 2012 may be
accessed here:
http://www.uschamber.com/issues/comments/2011/comment-temporary-non-agricultural-
employment-h-2b-aliens
On June 29, 2015, the Chamber filed comments in response to the joint DOL and DHS interim
final rule, which can be accessed here:
https://www.uschamber.com/sites/default/files/dol_dhs_h-
2b_program_comment_uscc_on_ifr_6-29-2015.pdf
I-9 Employment Eligibility Verification
DHS’ U.S. Citizenship and Immigration Services (USCIS) published a finalized new Form I-9
on March 8, 2013, changing the one pager to a two page data collection form, which is now in
effect as of May 8, 2013.
The Chamber’s comments on the development of the new Form I-9, which went through a one
year regulatory process, may be accessed here: https://www.uschamber.com/comment/comment-
uscis-form-i-9-employment-eligibility-verification
and here:
https://www.uschamber.com/sites/default/files/documents/files/USCC%2520comment%2520on
%2520I-9%2520form%2520to%2520OMB%252010-15-2012.pdf
Automation of Form I-94 Arrival/Departure Record
On March 27, 2013, the Department of Homeland Security’s Customs and Border Protection
(CBP) promulgated an interim final rule establishing automation of the Form I-94
Arrival/Departure Record to streamline the admissions process for individuals lawfully visiting
the United States. Form I-94 provides international visitors evidence they have been lawfully
admitted to the U.S. which is necessary to verify alien registration, immigration status, and
employment authorization.
November 10, 2016 Page 49
The automation means that affected visitors will no longer need to fill out a paper form when
arriving to the U.S. by air or sea, improving procedures and reducing costs. Travelers wanting a
hard copy or other evidence of admission will be directed to www.cbp.gov/I94 to print a copy of
an I-94 based on the electronically submitted data, including the I-94 number from the form, to
provide as necessary to employers, benefits providers or as evidence of lawful admission.
On August 11, 2014, the Department of Homeland Security proposed to update and reissue the
current Department of Homeland Security systems of records, titled “Department of Homeland
Security/U.S. Citizenship and Immigration Services—on E-Verify Program System of Records.”
The proposals will streamline the system and update the process so that a foreign passport
number and country of issuance (COI) is used instead of the I-94 number in the E-Verify
program. Comments were due by September 7, 2014.
CBP is in the process of rolling out the automation at all ports of entry. After a period of several
years, it is expected that CBP will eliminate the arrival/departure record altogether, and use
passport numbers to track foreign nationals entering the country.
H-4 Spousal Work Authorization
On May 12, 2014, the Department of Homeland Security’s U.S. Citizenship and Immigration
Services (USCIS) proposed amendments to its regulations by publishing a Notice of Proposed
Rulemaking that would extend the availability of employment authorization to certain H-4
dependent spouses. H-4 spouses will be eligible for work authorization if the principal H-1B
visa holder is the beneficiary of an approved I-140 or has had his/her H-1B status extended under
the provisions of the American Competitiveness in the 21st Century Act of 2000. USCIS
believes that allowing the eligible class of H-4 dependent spouses to work encourages
professionals with high demand skills to remain in the country and help spur the innovation and
growth of U.S. companies, and thus allow the U.S. to remain a world leader in high technology.
While at one point USCIS only wanted to propose H-4 work authorization where the H-1B
principal worker had been waiting at least six years, the Chamber was pleased to see that the
published NPRM allows any H-4 spouse request work authorization where the principal H-1B
worker’s employer has completed all steps in sponsorship and the H-1B worker is merely
waiting for visa availability. The Chamber has advocated for the creation of employment
authorization for H-4 dependent spouses of principal H-1B nonimmigrants being sponsored for
permanent status.
On July 11, 2014, the Chamber submitted comments, which may be accessed here:
https://www.uschamber.com/sites/default/files/documents/files/USCC%20H4%20comment%20
7-11-2014.pdf
On February 25, 2015, the Department of Homeland promulgated the final rule and the rule went
into effect on May 26, 2015.
November 10, 2016 Page 50
Updating Immigration Procedures for Consistency in E-3, H-1B1, CW-1, and EB-1 Processing
On May 12, 2014, the Department of Homeland Security’s USCIS proposed to update the
regulations regarding several employment-based immigration issues, primarily to make a change
that would provide some degree of expanded flexibility in adjudicating outstanding professor and
researcher cases and to address procedural irregularities since certain visa categories were
created after the governing regulations were finalized and were thus not referenced.
USCIS proposed to expand the current list of evidentiary criteria for employment-based first
preference (EB-1) outstanding professors and researchers to allow the submission of evidence
comparable to the other forms of evidence already listed in the regulations. These regulations
harmonize the regulations for EB-1 outstanding professors and researchers with other
employment-based immigrant categories that already allow for submission of comparable
evidence.
The proposal also clarified that H-1B1 nonimmigrants from Chile and Singapore and principal
E-3 nonimmigrants from Australia are allowed to work without having to separately apply to
DHS for employment authorization. In addition, E-3 and H-1B1 visa holders are eligible for a
240 day extension of work authorization upon timely filing of an extension of stay petition.
Similar provisions apply for the CW-1 category, which applies to work permits in the
Commonwealth of the Northern Mariana Islands. These visa categories were created pursuant to
Free Trade Agreements negotiated after the current regulations were finalized.
The Chamber’s comment supported the proposed rule and asked the agency to update
immigration procedures in other areas as well. Specifically, the Chamber’s comment requested
that premium processing be expanded to include all EAD and AP (advance parole travel
authorization) requests, that a clarification be published confirming that L/E spouses are
authorized to work incident to status as required by statute, and to modernize Reentry Permit
processing so that requests do not require two trips to the United States for green card holders
temporarily outside the country – all of which are procedures that can be updated through
interpretive guidance or memo. The Chamber’s comment also asked the agency to consider
some other technical, procedural changes that would require notice and comment rulemaking.
On July 11, 2014, the Chamber submitted comments, which may be accessed here:
https://www.uschamber.com/comment/enhancing-opportunities-h-1b1-cw-1-e-3-nonimmigrants-
and-eb-1-immigrants
On January 15, 2016, the final rule was published in the Federal Register.
Reinstate and Expand the STEM Optional Practical Training Extension
On August 12, 2015, the U.S. District Court for the District of Columbia held that the 2008
Interim Final Rule that provided for a 17-month OPT extension suffered from serious procedural
deficiencies and ordered that the rule be vacated. However, the Court indicated that it felt such a
November 10, 2016 Page 51
policy was within DHS’s authority and the Court stayed its order to provide the agency with the
ability to properly promulgate a new rule so as to avoid the disruption that would have been
caused if the Court’s order was immediately enforced.
On October 19, 2015, the Department of Homeland Security’s U.S. Citizenship and Immigration
Services (USCIS) issued a Notice of Proposed Rulemaking allowing individuals with STEM
degrees from U.S. institutions of higher education to receive a 24 month extension of their
Optional Practical Training status, which is a 7 month increase from the 2008 rule, thus allowing
these graduates the ability to work longer in the U.S. without having to obtain a different legal
status. The rule also allows for students who have a prior degree in a STEM field to obtain this
24 month extension of OPT status and also clarifies which fields of study would serve as the
basis for an extension of status.
On November 18, 2015, the Chamber submitted comments, which may be accessed here:
https://www.uschamber.com/comment/comments-us-immigration-and-customs-enforcement-
stem-opt-f-1-nonimmigrant-students and here:
https://www.uschamber.com/comment/comments-office-information-and-regulatory-affairs-
stem-opt-f-1-nonimmigrant-students
On March 11, 2016, the final rule was published in the Federal Register. The Administration
addressed some of our more important concerns with their initial proposal. In particular, the
administration changed the language involving the attestations that employers will have to make
in order to utilize the STEM OPT Extension. The language in the final rule requires employers
to attest that they are not using the STEM OPT extension to hire individuals who will “replace”
American workers; the language in the NPRM was not as specific and potentially could have
made companies liable for violating the terms of the STEM OPT Extension when there was no
connection between the hiring of an individual or individuals on a STEM OPT Extension and the
termination of employment for an American worker.
Other important changes include the increased process protections with regard to an employer’s
requirement to report the termination of employment for a STEM OPT Extension recipient. The
NPRM required employers to notify the federal government within 48 hours of the termination;
the final rule gives employers 5 business days from the date of termination to inform the
government of the individual’s employment termination.
Lastly, the final rule provides much needed process protections with regard to site visits. The
NPRM provided no protections to employers and would have allowed for unannounced site
visits; the final rule establishes that unless DHS has evidence of program noncompliance or a
complaint has been filed against the employer, the employer will be apprised of the site visit 48
hours before the site visit.
U.S. Citizenship and Immigration Services Fee Schedule
On May 4, 2016, the Department of Homeland Security issued a proposal to adjust the USCIS
fee schedule for applicants and petitioners. In doing so, the Administration imposed substantial
increases in fees for the services that most employers use in order to not just fund USCIS’
November 10, 2016 Page 52
operations in processing all of these petitions, but also cover the costs for the increased
admission of refugees into the U.S., as well as paying for the operation of the Systematic Alien
Verification for Entitlements (SAVE) Program and the Office of Citizenship at USCIS.
While the weighted average increase in fees for each service performed by USCIS was 21%, the
percentage increase for the services most utilized by employers were substantially higher than
this weighted average, which would indicate that the Administration is leaning heavily on the
employer community to cover the expected budgetary shortfall. On July 6, 2016, the Chamber
submitted comments, which may be accessed here:
https://www.uschamber.com/sites/default/files/documents/files/fee_schedule_comment_final_7-
6-2016.pdf
On October 24, 2016, the Department of Homeland Security promulgated the final regulation
with no substantive changes.
Rulemakings Underway
Labor Condition Application (ETA 9035) for H-1B Petitions
On July 9, 2012, the Department of Labor’s Employment and Training Administration (ETA)
published proposed significant revisions to ETA Form 9035, otherwise known as the Labor
Condition Application (LCA) Form, and its instructions.
The proposed form revision, among other things, would limit the maximum number of workers
who could be covered on a single LCA to no more than 10 and require that the intended
worker(s) be identified by name on the LCA form prior to filing. Significant private information
would be collected on the proposed new LCA, including data about the named employee, end
clients of consulting firms, and information about the sponsoring employer (e.g., revenue).
The Chamber strongly opposes the collection of this private information and mounted a detailed
challenge to several aspects of the revised form that appear to conflict with existing DOL
regulations. The Chamber’s position is that the proposed LCA revision is inconsistent with the
Administrative Procedure Act, the Privacy Act, state privacy laws, EEOC rules, current
regulations governing the LCA, and, in some circumstances, the federal statute governing the
creation of the LCA obligation. On September 7, 2012, the Chamber submitted comments.
The entire LCA form, without exception and without redaction, is required by statute to be
publicly available for review. Currently, any member of the public, including a representative of
a competitor business, any employee of the petitioning employer, or a reporter, can request to see
an employer’s public access file. In addition, DOL makes certain information on the LCA form
available on its website.
On January 24, 2013, DOL announced in a Federal Register notice that the agency would launch
a searchable online registry of LCAs that would make employer sponsorship information more
quickly and easily accessible to the public. While DOL already discloses some data on
employers’ LCAs, the agency plans to release this information in a variety of formats, including
November 10, 2016 Page 53
PDF copies of certified cases and a searchable database. The new registry has now been
launched and includes LCAs certified since April 15, 2009.
DOL’s launch of searchable index of LCA information highlights the importance of the
Chamber’s efforts to bar DOL from requiring an employer to include additional private
personally identifiable information on the LCA form. For now, DOL has been silent on if or
when it will proceed with LCA reform.
The Chamber’s comments on the DOL proposal to expand the nature of information collected
through the LCA process may be accessed here:
https://www.uschamber.com/comment/comments-dol-form-eta-9035-labor-condition-
application-nonimmigrant-workers
Asia-Pacific Economic Cooperation (APEC) Business Travel Card
On May 13, 2014, the Department of Homeland Security’s U.S. Customs and Border Protection
promulgated an interim final rule, setting forth the eligibility requirements and the application
procedures and fee for the APEC Business Travel Card. Pursuant to the APEC Business Travel
Cards Act of 2011 and the APEC Business Travel Card Operating Framework, U.S. Customs
and Border Protection is establishing the U.S. Asia-Pacific Economic Cooperation Business
Travel Card Program. APEC is an economic forum whose primary goal is to support sustainable
economic growth and prosperity in the Asia-Pacific region. APEC is comprised of 21 members,
including the United States. One of APEC's initiatives is the APEC Business Travel Card
Program. The U.S. APEC Business Travel Card Program will enable eligible persons access to
fast-track immigration lanes at foreign APEC economies. Comments were due by June 12, 2014.
Notice of Request For Information
On December 30, 2014, the Department of State and Homeland Security issued a Notice of
Request For Information (RFI) to inform the development of recommendations, pursuant to the
President’s memorandum issued on November 21, 2014, requesting recommendations to
streamline and improve the Nation’s immigration system.
On January 29, 2015, the Chamber submitted comments, which may be accessed here:
https://www.uschamber.com/comment/comments-department-homeland-security-visa-
modernization
E-Verify Final Non Confirmation Review Process and New Reverification Obligation (USCIS)
In a Federal Register notice published on June 8, 2015, USCIS announced that it was proposing
an expansion of the E-Verify program. While the notice in the Federal Register was
characterized as a revision to a currently approved collection of information by the U.S.
government, the proposed changes in the notice were not authorized by the controlling statute,
they were inconsistent with current federal regulations, and created serious operational issues for
Chamber members, and the Chamber vehemently opposed the revisions proposed by DHS.
November 10, 2016 Page 54
On August 7, 2015, the Chamber filed comments to that effect, which may be accessed here:
https://www.uschamber.com/comment/comments-uscis-the-changes-e-verify-through-the-
paperwork-reduction-act-form-change-process
Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting
Highly-Skilled H-1B Alien Workers (USCIS)
On December 31, 2015, USCIS proposed to amend regulations impacting certain
employment-based immigrant and nonimmigrant classifications. The agency’s intent in issuing
this rule was to provide employers with added certainty over agency processes, along with giving
employees added certainty and flexibility to enhance their ability to stay in the country and work
with the proper government authorization. In doing so, the agency sought endeavored to define
key terms contained in the American Competitiveness in the 21st Century Act (AC21), as well as
the American Competitiveness and Workforce Improvement Act of 1998, so as to codify in the
regulations the current practices and procedures of DHS governing the adjudication of certain
employment based immigrant and nonimmigrant visa petitions.
On February 29, 2016, the Chamber submitted comments, which may be accessed here:
https://www.uschamber.com/comment/comments-uscis-retention-eb-1-eb-2-and-eb-3-
immigrant-workers-and-program-improvements
Department of Homeland Security and Department of Labor Federal Civil Penalties Inflation
Adjustment Act Catch-Up Adjustments for the H-2B Temporary Non-Agricultural Worker
Program
On July 1, 2016, the Department of Labor and Department of Homeland Security promulgated
interim final regulations implementing the Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015 to adjust the amounts of civil monetary penalties assessed or enforced
in connection with the employment of temporary nonimmigrant workers under the H-2B
program. Comments were due by August 15, 2016.
Standards and Procedures for the Enforcement of the Immigration and Nationality Act
On August 15, 2016, the Department of Justice promulgated a proposed rule to revise regulations
implementing a section of the Immigration and Nationality Act regarding unfair
immigration-related employment practices.
The impact of the proposed rule is that employers would be subject to a significant increase
regarding an employers' exposure to discrimination claims. The rule would give the Justice
Department up to five years from the time of an alleged violation to file a charge against an
employer. Under current regulations, charges must be filed within 180 days of the alleged
occurrence. The proposed rule also states that the agency has the authority to waive the 180-day
time limit for an individual employee to file a charge against an employer if the Special Counsel
determines that equitable principles should apply in a given situation. Furthermore, the proposal
purports to grant expanded investigative powers to DOJ. This includes the type of information
that employers may need to provide to the government and from whom the government is
November 10, 2016 Page 55
allowed to obtain said information. Lastly, employers would face potential liability for
discrimination if they treat employees differently based upon the immigration status of certain
individuals, regardless of their reasons for the differential in treatment and even where an
employer can show there is no animus or hostility involved in the alleged incident(s).
On October 14, 2016, the Chamber submitted multiple comments, one as part of a coalition the
Chamber led with our business allies to inform DOJ of the ill-advised policy decisions it made in
its proposal, and one submitted on behalf of the Chamber to call into question the vastly
suboptimal economic analysis that DOJ performed in studying the effects of its proposals. You
can access the following comments here: https://www.uschamber.com/comment/multi-
association-comments-the-doj-immigration-related-employment-discrimination and here:
https://www.uschamber.com/sites/default/files/documents/files/coalition_comments_doj_nprm_u
nfair_immigration_related_employment_practices_10-14-16_final.pdf and here:
https://www.uschamber.com/sites/default/files/documents/files/coalition_comments_doj_nprm_e
xhibits_10-14-16.pdf
Significant Public Benefit Parole for Entrepreneurs (USCIS)
On August 31, 2016, USCIS promulgated a proposed rule to establish a program that allows
consideration for parole into the U.S. on a case-by-case basis for certain entrepreneurs. Under
the proposed guidelines, program eligibility will be based upon the individual’s role in creating a
start-up enterprise wherein the person’s entry into the U.S. would provide a substantial public
benefit through substantial and demonstrated potential for rapid business growth and job
creation. This potential could be evidenced by, among other things, the fact that the business has
received substantial capital investment from qualified U.S. investors or has obtained significant
awards/grants from certain Federal, State, or local governmental entities. Entrepreneurs that
qualify for this benefit would be able to stay in the U.S. for a total of 5 years as a parolee in the
U.S.
While this rule is well-intentioned, the Department’s focus on the parole process does not
provide putative entrepreneurs with the certainty needed for most start-ups to truly flourish in the
U.S. On October 17, 2016, the Chamber submitted comments with several suggestions on how
to improve the initial proposal, which may be accessed here:
https://www.uschamber.com/sites/default/files/documents/files/uscc_entrepreneur_comments_fi
nal_10-17-16.pdf
Anticipated Rulemakings
Procedural and Technical Employment Verification (I-9) Violations (ICE)
The Department of Homeland Security’s Immigration and Customs Enforcement (ICE) has been
indicating since early 2011 that it was prepared to issue a NPRM finally implementing the
mandate of the 1996 immigration reform legislation (IIRIRA – the Illegal Immigration Reform
and Immigrant Responsibility Act) to distinguish between substantive failures to comply with the
employment verification obligations (I-9) and technical or procedural failures. ICE has
announced that it expects to move forward with this proposed rulemaking.
November 10, 2016 Page 56
Nonimmigrant Classes: Temporary Visitors to the United States for Business or Pleasure (CBP)
The Department of Homeland Security’s Custom and Border Patrol (CBP) is beginning a
rulemaking process to clarify when an individual’s activities are appropriate for B-2 tourist or
B-1 business visitor classification. A proposed rule is projected to be issued by October, 2016.
Implementation of Amendments Affecting Petitions for Employment Creation for Aliens (USCIS)
This rule amends the Department of Homeland Security regulations to implement changes made
by the 21st Century Department of Justice Appropriations Authorization of 2001. This
legislation made various changes to the EB-5 alien immigrant classification. This rule’s impact is
likely going to be minimal because it only governs the requirements and procedures for certain
petitions that were approved after January 1, 1995, and before August 31, 1998, but the Chamber
will monitor its progress moving forward. Final rule is projected to be issued in April, 2017.
Improvement of the Employment-Creation (EB-5) Immigration Regulations (USCIS)
USCIS has announced plans to promulgate updated EB-5 regulations that will provide more
clarity to the program’s requirements at a date to be determined. Issues to be addressed in the
updated regulations are: the designation of Targeted Employment Areas; indirect job creation;
the required investment amount; the effects of material changes on conditional residency; the
regional center designation process; and monitoring for regional center compliance. This is
being done while Congress is seeking to make major reforms to the program. It is our
understanding that the Administration expects to issue an NPRM sometime in November. 2016.
Department of Labor- Labor Certification for Permanent Employment of Foreign Workers in the
United States; Revising Schedule A
A Request for Information (RFI) is being issued by the Employment and Training
Administration to provide input on whether Schedule A serves as an effective tool for addressing
current labor shortages, and how the Department may create a timely, coherent, and transparent
methodology for identifying occupations that are experiencing labor shortages in keeping with
the requirements of the Immigration and Nationality Act (INA). According to ETA, “Information
received from the public will help inform decisions regarding how to improve Schedule A.” The
RFI was anticipated May, 2016.
Labor Department – PERM Modernization Efforts
For some time now, the Labor Department has sought ways to improve the PERM process for
individuals and companies using the employment-based immigrant visa system to access the
workers they need. The Chamber and several of its members met with the Department in the fall
of 2015 to discuss ways that DOL could improve the PERM process for stakeholders, which
included, among other things, updating its recruitment regulations, amending the Department’s
treatment of certain “harmless errors,” revising the prevailing wage determination process to
ensure that wage requirements reflect market realities. At our prior Immigration Subcommittee
Meeting, the Assistant Secretary for the Employment and Training Administration told us to
November 10, 2016 Page 57
expect a proposal sometime in May, 2016. An initial proposal still has not been released by the
Labor Department, but it is possible that one could emerge during the lame duck session of
Congress following the election.
Significant Non-Regulatory Activities
Department of Homeland Security
L-1B Adjudication Policy (USCIS)
On March 24, 2015, USCIS published a proposed Policy Memorandum that would “provide
guidance on the adjudication of the L-1B classification.” The new guidance supersedes and
rescinds all prior guidance on L-1Bs. Public feedback was accepted through May 8, 2015
regarding the proposed guidance, and it is not clear when the final Policy Memorandum will be
issued. It is anticipated that the final L-1B Adjudications Policy will go into effect August 31,
2015. On May 7, 2015, the Chamber submitted comments, which may be accessed here:
https://www.uschamber.com/sites/default/files/uscis_l1b_proposed_guidance_5-7-2015.pdf
On July 17, 2015, USCIS issued a new draft template Request for Evidence (RFEs) for L-1B
petitions when multinational employers seeking to transfer their specialized knowledge
employees to the U.S. The comment period was only 2 weeks long and the surprising nature of
this notice was that the agency was drafting new templates for the RFE process when the agency
had not even finalized the new guidance on the L-1B adjudication process it had proposed in the
spring. The Chamber submitted comments on this draft template.
On August 18, 2015, USCIS issued its final L-1B policy memorandum with respect to the
guidance it originally proposed on March 24, 2015. The final memorandum made multiple
changes to the guidance that the Chamber had recommended in its comments with respect to the
L-1B adjudications process. One change concerns the consideration of the petitioner’s statement
with regard to the specialized knowledge required to perform the job. The finalized guidance
now instructs adjudicators that a petitioner’s statement, standing alone, may be sufficient to
warrant approval when it is credible and detailed.
Another change the Chamber sought was concerned with the way that remuneration for the job
was considered by the agency. Initially, the agency had referred to all forms of compensation as
“salary paid.” The final guidance changed those salary references to “compensation received”
because many L-1B workers are not just compensated with a salary, but they receive other
benefits (e.g. meals, housing allowances, transportation, etc.,) and that should be included in the
calculation of whether or not the L-1B worker’s total compensation is comparable to that which
is given to the employer’s similarly situated U.S. workers.
H-1B Adjudication Policy (USCIS)
On April 9, 2015, the Administrative Appeals Office (AAO) issued the precedent decision,
Matter of Simeio Solutions, LLC, in which it held that a change in the place of employment of a
beneficiary to a geographical area requiring a new certified LCA is a “material change” for
November 10, 2016 Page 58
purposes of 8 CFR §§214.2(h)(2)(i)(E). Thus, in addition to complying with DOL regulations by
obtaining a certified LCA and complying with the posting requirements at the new geographical
area of employment, according to Simeio, the employer must also file an amended H-1B petition
with USCIS. In reliance on 8 CFR §214.2(h)(11)(i)(A), the AAO noted that the amended H-1B
petition must be filed “immediately.”
On May 21, 2015, USCIS released guidance on the filing of amended H-1B petitions in light of
the Simeio decision. In sum, the guidance instructs employers to file amended petitions for H-1B
employees who have changed or are going to change their place of employment to a worksite
location outside of the MSA (Metropolitan Statistical Area) or “area of intended employment”
covered by the existing H-1B petition, even if a new LCA has been certified and posted at the
new location. For H-1B employees who changed work locations prior to the issuance of Simeio,
employers are given 90 days (until August 19, 2015) to file amended petitions.
USCIS republished interim guidance on May 26, 2015, and then issued new draft guidance on
May 27, 2015, stating that comments would be accepted until June 26, 2015.
On June 26, 2015, the Chamber, as part of a broader coalition, submitted joint comments, which
may be accessed here: https://www.uschamber.com/sites/default/files/multi-
association_comments_to_uscis_on_simeio_6-26-2015.pdf
On July 21, 2015, USCIS issued final guidance that incorporated two key changes that the
Chamber sought to be included in the initial guidance issued on May 21, 2015. One of the those
changes was that the new guidance should not apply retroactively to cases that were adjudicated
and approved before April 9, 2015 (the day the Simeio decision was issued). The other key
change that was incorporated was the extension of the grace period for employers to comply with
the requirement to file amended petitions when H-1B workers are moved to a new place of
employment. Initially, the agency sought to force companies to comply with the new
requirements by August 19, 2015, but petitioners now have until January 15, 2016, to file the
necessary amended petitions under the Simeio decision.
