While much of Washington, DC, begins its preparations for the inevitable summer slowdown, the Department of Labor’s Wage and Hour Division appears to be ramping up for a summer sure to keep wage and hour lawyers across the country hopping (and likely ruining some planned vacations).
Since WHD’s proposed rule made its way over to OMB’s Office of Information and Regulatory Affairs (OIRA) just over a month ago, there has been rampant speculation about the timing of the proposal’s public reveal. In the meantime, numerous organizations have met with OIRA to provide their thoughts on the expected rule. Those meetings go into next week. As a result, we expect that the proposed rule will be formally announced no sooner than the end of next week, and almost certainly before the month’s end. We will, of course, keep you updated as we learn additional information.
Once the proposal has been released, WHD does not plan to simply sit back and wait for the comments to roll in. WHD Administrator, Dr. David Weil, recently announced that he plans to issue an Administrator Interpretation clarifying who qualifies as an independent contractor under the FLSA. This is not all that surprising, given Dr. Weil’s interest in the employment relationship, notably his focus on fissured industries. The concepts articulated in any guidance are likely to be far-reaching, and will also need to be carefully considered in a wide variety of other putative employment contexts, such as franchising and subcontracting. Notwithstanding the significance of this issue, the Administrator Interpretation simply gets released, and there will be no opportunity for public notice-and-comment. No formal timetable has been given by WHD, but expect it to be released this summer.
Then, as the white-collar proposal’s comment period begins to draw to a close (or gets extended), WHD intends to publish a Request for Information (RFI) on the use of smartphones and their impact in hours worked under the FLSA. Although no formal rulemaking has been proposed, remember that the Department’s RFI on Family and Medical Leave Act use and abuse in 2006 led to a report in 2007, and a proposed rule and final rule in 2008.