IRAPs Arrive (Beltway Buzz, June 28, 2019)

The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what's happening in Washington, D.C. could impact your business.

IRAPs Arrive. On June 24, 2019, the U.S. Department of Labor's (DOL) Employment and Training Administration issued a notice of proposed rulemaking (NPRM) "to advance the development of high-quality, industry-recognized apprenticeship programs (IRAPs)." The regulations implement President Trump's 2017 executive order titled Expanding Apprenticeships in America. The proposal establishes a new program in which Standards Recognition Entities (e.g., trade groups, educational institutes, government entities, labor unions, and nonprofits) set standards for training, structure, and curricula for IRAPs. According to the proposal, an "industry-led, market-driven approach would provide the flexibility necessary to scale the apprenticeship model in new areas and address America's skills gap through high-quality apprenticeships." Comments will be due 60 days from the NPRM's official publication in the Federal Register, which means that they will likely be due near the end of August or beginning of September.

FLSA Joint-Employer Docket Closes. June 25, 2019, was the deadline for submission of comments on the DOL's Wage and Hour Division's (WHD) proposed changes to its joint-employer regulations. Within the last several weeks, the WHD has closed the docket on three significant proposals: changes to the overtime regulations, changes to the "regular rate" definition for purposes of calculating overtime, and now joint employment. It will no doubt be a busy summer for the WHD officials who will be tasked with reviewing these comments and—presumably—issuing final rules.

SCOTUS Upholds Agency Deference. Readers of the Buzz know that we've been tracking Kisor v. Wilkie, the case at the Supreme Court of the United States that addresses whether courts should defer to agencies' interpretations of their own ambiguous regulations. Critics of this doctrinereferred to as Auer deferencemaintain that it grants too much power to agencies and creates an incentive for them to issue vague and ambiguous regulations that can be interpreted in a variety of ways in the future. In an opinion written by Justice Elena Kagan, the Court declined to completely overrule the line of cases that create Auer deference, but it did put some parameters around the doctrine, ruling that "a court should not afford...