The same week the Department of Labor removed two guidance documents governing joint employment and independent contractors, it indicated it will soon reconsider two contentious rules that have been put on hold. The DOL is proposing to rescind the so-called "persuader" rule that would have expanded reporting requirements for employers that use labor-management consultants for certain purposes, and plans to seek public input on the salary thresholds set in the "white collar" overtime rule. Both of these rules were prevented from taking effect by court order.
On June 12, 2017, the Federal Register will publish the DOL's Office of Labor Management Standards' (OLMS) proposal to rescind regulations that would have required employers to file public reports with the DOL when they use consultants (including lawyers) to provide labor relations advice and services that have the purpose of persuading employees regarding union organizing or collective bargaining. The consultants would also have been required to file similar reports containing the details of advice and services provided and the amount of payment received for that advice and service. For decades, these reports have been required only when a consultant providing advice has direct contact with employees. In November 2016, a Texas federal court permanently blocked this "persuader" rule.
In its proposal to rescind the rule, the OLMS explains:
The Department proposes to rescind the Rule to provide the Department with an opportunity to give more consideration to several important effects of the Rule on the regulated parties. Rescission would ensure that any future changes to the Department’s interpretation would reflect additional consideration of possible alternative interpretations of the statute, and could address the concerns that have been raised by reviewing courts. . . . The Department will also consider the potential effects of the Rule on attorneys and employers seeking legal assistance. Rescission would also permit the Department to consider the impact of shifting priorities and resource constraints.
Comments on this proposal are due by August 11, 2017.
Meanwhile, during a June 7 budget hearing, Labor Secretary Acosta indicated that the agency would soon issue a request for information (RFI) on the contentious "white collar" overtime rule that would have re-defined which employees are exempt from the Fair Labor Standards Act's minimum wage and overtime requirements. The rule—which a federal court temporarily enjoined last year—would have more than doubled the minimum salary level for exempt employees from $455 per week ($23,660 annually) to $913 per week ($47,476 annually). The RFI is considered the first step the Department may take in reworking the rule.
The withdrawal of the sub-regulatory guidance documents and the proposals to take a second look at the persuader and overtime rules shows that the DOL under the current administration is steering the agency in a different direction.