Regular Rate Proposal Issues (Beltway Buzz, March 29, 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.

Regular Rate Proposal Issues. On March 29, 2019, the U.S. Department of Labor's (DOL) Wage and Hour Division (WHD) published a notice of proposed rulemaking (NPRM) to clarify what forms of payments must be included (or excluded) for purposes of calculating workers' overtime pay. According to the WHD, the clarification is necessary because the current outdated regulations discourage employers from "offering more perks to their employees as it may be unclear whether" to include those perks when calculating an employee's regular rate of pay for overtime purposes. To help alleviate this confusion, the DOL proposes to expressly exclude certain costs—such as payments for unused paid leave—from the regular rate calculation. Comments are due on May 28, 2019—just one week after comments are due on the proposed overtime rulemaking.

PFA Advances. On March 27, 2019, the U.S. House of Representatives passed the Paycheck Fairness Act (PFA) by a vote of 242 to 187. Seven Republicans voted in favor of the bill and no Democrats voted against it. The bill now moves to the Senate, where it faces an uphill climb. However, even if the PFA dies in the Senate, its proponents will continue to try to expose alleged pay inequities in the private sector through other means, whether this is through the enactment of local "mini-PFAs" (such as those passed in California and Massachusetts), continued pressure to force the Equal Employment Opportunity Commission (EEOC) and/or the Office of Federal Contract Compliance Programs (OFCCP) to collect wage data from employers, Freedom of Information Act (FOIA) requests, shareholder proposals, enforcement/litigation, or other means.

Labor Relations Hearing. On March 26, 2019, the House Subcommittee on Health, Employment, Labor, and Pensions held a hearing entitled, "Protecting Workers' Right to Organize: The Need for Labor Law Reform." Democrats on the committee will likely use this hearing as the starting point to begin debating the Workplace Democracy Act or the Workers' Freedom to Negotiate Act. Buckle up.

Retirement News. On March 26, 2019, the U.S. Senate Committee on Finance approved the nomination of Gordon Hartogensis, to direct the Pension Benefit Guaranty Corporation (PBGC). (Hartogensis would replace Thomas Reeder who is still serving as...