Wage And Hour Rulemaking News (Beltway Buzz, June 14, 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.

Wage and Hour Rulemaking News. June 12, 2019, was the deadline for submission of public comments in response to the U.S. Department of Labor's Wage and Hour's Division's (WHD) proposed changes to clarify what forms of payment must be included (or excluded) from workers' regular rate for purposes of calculating 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 According to the WHD, the clarification is necessary because the current, outdated regulations discourage employers from "offering more perks to their employees as it may be unclear whether" to include those perks when calculating an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. A final rule will be the next stop in the process, but the WHD has not provided any indication as to when this may occur.

Oils Well That Ends Well. The current term of the Supreme Court of the United States is coming to an end, but unlike the class trips and field days associated with the end of a school year, there is actually a lot of work being done at the high court. For example, this week the Court issued a unanimous decision in Parker Drilling Management Services, Ltd. v. Newton, which stated that federal wage and hour law—not California law—applies to offshore oil rig workers. This overturned an earlier decision by the U.S. Court of Appeals for the Ninth Circuit. With only two weeks remaining in the Supreme Court's current term, there are 24 decisions still to issue. In particular, the Buzz is watching for the Court's opinion in Kisor v. Wilkie, regarding courts' deference to agencies' interpretations of their own rules.

USCIS and the FVRA Shuffle. On June 10, 2019, United States Citizenship and Immigration Services (USCIS) announced Kenneth T. Cuccinelli as the new acting director of the agency. But Cuccinelli has never served in the federal government and was never even nominated for the position, which requires U.S. Senate confirmation. So how did he get installed? Generally, the Federal Vacancies Reform Act of 1998 (FVRA) allows only three classes of individuals to serve in an acting capacity when a vacancy arises: (1) the deputy or first assistant to the office; (2) another official (not necessarily from the same agency) who has been confirmed by the Senate; and (3) a senior employee at the agency if he or she has been employed for at least 90 days...

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