June 29th, 2017 Federal Legislative Update

June 29th, 2017 Federal Legislative Update

Below is a brief Legislative Director Update of some noteworthy developments.

· Immigration: New guidance explaining the criteria for visa applicants was issued by the Department of State to U.S. Embassies and consulates on June 28, 2017. The guidance will go into effect on June 29th at 8:00 p.m. EDT. The guidance is in response to the U.S. Supreme Court’s June 26, 2017 partial reinstatement of President Donald Trump’s revised Executive Order. You can read more here: http://www.jacksonlewis.com/publication/new-guidance-trump-s-revised-travel-ban-effective-june-29

· EEOC: President Trump plans to nominate Janet Dhillon as the next chair of the EEOC. Dhillon has served as general counsel for three major U.S. Corporations. Dhillon, executive vice president and general counsel of Burlington Stores, Inc., will be appointed to a 5 year term on the EEOC and would become chair upon confirmation by the Senate. Democrats currently hold a 3-1 majority on the commission.

· Labor: President Trump nominated a management side labor law attorney, William Emanual, to the NLRB. Within the past week, President Trump also nominated Roger Kaplan to the NLRB. Both nominations are awaiting Senate confirmation. However, given the August recess and other pressing matters, it is unlikely that we will see a Senate confirmation on both nominations very soon.

· Wage and Hour: The Department of Labor announced that it is bringing back Wage and Hour Division opinion letters. As you may recall, opinion letters allow employers and workers to ask the department to weigh in on the legal issues in a particular factual situation. Employers can then use those letters in court as a good-faith defense in federal minimum wage, overtime and FMLA cases.

· Wage and Hour: As you may recall, the Obama Administration issued a Final Rule raising the salary level for the White Collar exemptions from $23,660 to $47,476 that was to become effective 12/1/16. In November, a federal district court judge in Texas issued an injunction blocking the rule. The Obama Department of Labor appealed the decision to the 5th Circuit, but after the election, instead of pushing the appeal, the Trump DOL asked for several extensions to submit its final reply brief so the new administration could consider (reconsider) the issue, which is now due tomorrow. No request for an additional extension has been filed this week, so it is likely the government will file the brief on Friday and stake out its position. Also, on Tuesday of this week, the DOL submitted a proposed “Request for Information” to the OMB for review. This is likely the first step in issuing a new rule, but the Request for Information has not been published yet. Thus, the brief filed on Friday may provide the first clear statement of what the DOL’s intention is regarding the Final Rule. We will continue to keep you updated.

· Wage and Hour: The Department of Labor’s 2015 and 2016 informal guidance on joint employment and independent contractors were withdrawn effective June 7, 2017.

· Labor: The House Education and Workforce Committee approved two bills that would dismantle the NLRB’s so-called Quickie Election Rule. The Workforce Democracy and Fairness Act would require a 35 day waiting period after a petition is filed before an election can take place. There is also a bill that would make it easier for employers to file legal challenges to organizing drives before an election would take place. We will keep you updated on any advancements to these bills.

· Labor: To read the top 5 Labor Law Developments in May of 2017, please click here: http://www.jacksonlewis.com/publication/top-five-labor-law-developments-may-2017

· Public Sector: The Department of Education regional directors have been given new instructions on sex discrimination protections for transgender students under Title IX of the Education Act of 1972. Two updated internal Office of Civil Rights guidance documents outline changes to the appropriate scope of the OCR investigations and to the Department’s interpretation of Title IX. You can read more here: http://www.jacksonlewis.com/publication/investigating-transgender-student-discrimination-under-new-education-department-directives