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Federal Legislative Updates

US DOL - Releases Notices of Proposed Rulemaking

The U.S. DOL released a notice of proposed rulemaking to revise the federal overtime regulations. The proposal would increase the standard salary level for exemption from minimum wage and overtime provisions under the FLSA to $679 per week (equivalent to $35,308 per year) from the current $455/week ($23,660 annually) originally set in 2004. Above this salary level, eligibility for overtime varies based on job duties. There were no changes to the job duties tests or a provision for automatic adjustments to the salary threshold included.

The proposal also includes:

• An increase to the total annual compensation requirement for "highly compensated employees" (HCE) from the currently-enforced level of $100,000 to $147,414 per year.
• A commitment to periodic review to update the salary threshold requiring notice-and-comment rulemaking.
• Ability to use nondiscretionary bonuses and incentive payments (including commissions) that are paid annually or more frequently to satisfy up to 10 percent of the standard salary level.

More information about the proposed rule is available on the US DOL website here.

The DOL has released a Notice of proposed rule making to update the agency’s position on joint employer status. The NPRM was published in the Federal Register with a 60-day comment period, which was recently extend to June 25th, 2019. The proposal provides clarity around employer and joint employer responsibilities and outlines a four-factor test to determine if the potential joint employer holds the authority to:

• Hire or fire the employee;
• Supervise and control the employee's work schedules or conditions of employment;
• Determine the employee's rate and method of payment; and
• Maintain the employee's employment records.

More detail regarding the proposed rule including fact sheets, FAQs, and examples are found at the DOL WHD site.

The DOL has released a Notice of Proposed Rulemaking (NPRM) regarding the calculation of the Regular Rate Under the Fair Labor Standards Act. The proposal was published in the Federal Register and clarifies what types of compensation must be included and may be excluded from the regular rate calculation for purposes of overtime. A public comment period was extended to June 12. The DOL has published additional resources including a fact sheet and FAQs.

EEOC FY18 ENFORCEMENT AND LITIGATION DATA

The U.S. Equal Employment Opportunity Commission (EEOC) released detailed breakdowns for the 76,418 charges of workplace discrimination the agency received in fiscal year 2018. The comprehensive enforcement and litigation statistics for FY 2018 are posted on the agency's website, which also includes detailed breakdown of charges by state. The FY 2018 data show that retaliation continued to be the most frequently filed charge filed with the agency, followed by sex, disability and race.

EEOC Increases Penalty for Notice Posting Violations

Effective April 22, 2019, the EEOC's civil monetary penalty for violations of the notice-posting requirements in Title VII, the Americans with Disabilities Act, and the Genetic Information Non-Discrimination Act, increased from $545 to $559.

EEO-1 Update

A federal judge ruled that the EEOC must collect Component 2 data (employee pay data, hours and wages, sorted by race, ethnicity and sex) The EEOC has announced it will collect pay data for both 2017 and 2018 by September 30 and expects to open the portal to submit the data by mid-July.

- What’s New in California? -

California Updates

The California Department of Fair Employment and Housing (DFEH) released an updated Certification of Health Care Provider Form for California Family Rights Act (CFRA) or Family and Medical Leave Act (FMLA).