Wage & Hour Division Hits Record Recoveries. The US Department of Labor announced that WHD’s FY2019 (which ended September 30) performance included a record $322 million in back wages recovered. WHD also held more than 3700 compliance events--another record. The Department prepared an infographic providing more details, including links to prior years’ metrics and statute-specific (e.g., FMLA, Davis-Bacon Act) performance.

... And Updates Its App. Several years ago, WHD created an app that allowed employees to record time spent working. The app contained few safeguards on data quality, allowing, for example, an employee to record 42 working hours in a single day. WHD has announced an update to the app, which now appears to limit an employee to 24 hours in a day. The app also contains an employer interface, allowing employers to record hours worked and rates of pay, while the app calculates the regular and overtime pay for an employee.

Bill to Limit Adjudicatory Power of NLRB Introduced. This week, Sen. Mike Lee (R-UT) introduced the Protecting American Jobs Act (S. 2709). The bill would eliminate the ability of the General Counsel to issue complaints, empower the Board to investigate—but not rule upon—allegations of unfair labor practices, and create a private right of action for unfair labor practices. The bill is cosponsored by Sens. Cotton (R-AR), Paul (R-KY), Blackburn (R-TN), Cruz (R-TX), and Rubio (R-FL).

Fluctuating Workweek Proposal Expected Soon. The fluctuating workweek is an alternative method of determining overtime pay, often resulting in lower overtime costs in exchange for a guaranteed salary for non-exempt employees. Late last week, the Office of Management and Budget’s Office of Information and Regulatory Affairs completed its review of the Department of Labor’s proposed rule on the use of fluctuating workweeks. Specifics are not yet available, but it is anticipated that the Department will address language in a 2011 rulemaking that has been read to limit the use of fluctuating workweek in the cases of employees who receive bonuses or incentive-based pay. We expect the proposal to be published in the Federal Register shortly.

The EEO-1 Component 2 Saga Continues. Like Freddy Krueger in Nightmare on Elm Street, the EEO-1 Component 2 saga refuses to die. Several significant activities are going on simultaneously. In no particular order, the EEOC announced that it believed that it had collected the requisite percentage of Component 2 forms and that it would close the portal created to receive the filings. The National Women’s Law Center went back to the DC District Court to argue that the received filings did not reach the court established level and the Component 2, 2017 and 2018 filing should continue. Judge Chutkan agreed with the plaintiffs and ordered that the portal be kept open at least until January 31, 2020. The EEOC was ordered to continue to file its status reports and the parties are to file a joint status report on February 7. The EEOC asserts that keeping the portal open will cost $150,000 per week after spending $3 million to establish the portal. At the same time, the EEOC has started the regulatory process to renew the OMB approval for the original EEO-1 Component 1. This is the normal process, but in that preliminary filing, the EEOC announced that it would not continue Component 2 beyond the 2018 filing insofar as the excessive burden was not justified by the complete lack of benefit or utility the data would provide. It could be expected that this will generate a new round of contention and possibly litigation. The employer representatives who have participated in the existing Component 2 litigation will file comments addressing the renewal of Component 1 and supporting the decision to stop the Component 2 collection. Seyfarth will be drafting comments for consideration by the employer associations. We expect to be reporting on the Component 2 saga in the future as it clearly will continue in the judicial and administrative forums for months to come.