Key FLSA Issues Featured in DOL's Spring 2010 Agenda
By Brian Molinari and Doug Weiner
The Department of Labor’s Semiannual Regulatory Agenda (pdf) reported in the Federal Register on April 26, 2010 contains several agenda items under the Fair Labor Standards Act (FLSA) that employers should note. Highlighted below are some key ones. (Note: this posting is not intended as a comprehensive summary the DOL's Agenda, which spans 49 pages and lists all regulations that are expected to be under review or development between April 2010 and April 2011.
Record-Keeping
Section 11 of the FLSA requires employers to keep specified records of the hours employees work, and the wages they are paid. We previously reported on DOL's stated intention to update the FLSA’s record-keeping regulations, which specify the scope and manner of records covered employers must keep that demonstrate compliance with minimum wage, overtime, and child labor requirements under the FLSA, and the records to be kept that would confirm applicability of particular exemptions. A Notice of Proposed Rulemaking (NPRM) is scheduled to be released in August 2010.
According to DOL, this rule proposal will:
- update the recordkeeping requirements to foster more openness and transparency in demonstrating employers’ compliance with applicable requirements to their workers, to better ensure compliance by regulated entities, and to assist in enforcement.
- update the recordkeeping requirements applicable to certain domestic employees and to modernize the requirements, consistent with the increasing emphasis on "flexiplace" and telecommuting, to allow for automated or electronic recordkeeping systems instead of the mandatory manual preparation of “homeworker” handbooks currently required for all work that an employee may perform in the home.
We will, of course, track whether and to what extent the record-keeping regulations are updated. However, irrespective of regulatory requirements, it's almost always in an employer's best interest to have an accurate and effective record-keeping policy and practice in place not just confirming hours worked and wages paid, but also descriptions of employees' job duties confirming applicability of any exemptions. The public will be invited to provide comments on the proposed revisions and possible alternatives.
Domestic Service Workers
We previously reported on the apparent plausibility of DOL revisiting and repealing the domestic service exemption. With respect to the current exemptions for domestic employees engaged in providing companionship services (29 U.S.C. 213(a)(15)) and for live-in domestic employees (29 U.S.C. 213(b)(21)), the DOL 's Agenda identifies a "long-term action" of updating the regulations at 29 CFR part 552 in light of significant changes in the home care industry. A Notice of Proposed Rulemaking is scheduled to be released in October 2011.
Specifically, DOL states that there is a need to examine: (i) the definition of companionship services; (ii) the criteria used to assess whether employees qualify as "trained personnel" (companionship services are currently defined to not include services performed by trained personnel such as registered or practical nurses); and (iii) the applicability of the exemption to third party employers. You may recall that the Supreme Court in Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007) held that DOL was within its authority to promulgate regulations that include employees who provide "companionship services" as falling within the terms of the statutory exemption irrespective of whether the employee is paid directly by a household or a third-party employer. Given the stated intentions of DOL, and the FLSA's historic tendency to classify less skilled/trained/educated workers as non-exempt, it is likely that DOL will exercise its rulemaking authority to significantly reduce the scope of the domestic service exemption.
Child Labor Health and Safety
We previously reported on increased child labor penalties and DOL's special focus on child labor safety. The DOL is now at the " final rule " stage of continuing to review regulations to ensure that job opportunities for working youth are healthy, safe, and not detrimental to their education, as required by 29 U.S.C. sections 203(l), 212(c), 213(c), and 216(e)). This final rule will update the regulations to reflect statutory amendments enacted in 2004, and will propose, among other updates, revisions to address several recommendations of NIOSH in its 2002 report to the DOL on the child labor Hazardous Occupations Orders. The DOL has assessed that updating child labor regulations issued under the FLSA will help meet the challenge of ensuring good jobs that are safe, healthy, and fair for the Nation’s working youth, while balancing their educational needs with job-related experiences that are safe. Final action is expected by the end of this month.
In the coming months, we will continue to review DOL's rulemaking progress, and update our readers.
