Dive Brief:

• The U.S. Department of Labor (DOL) will finalize regulations changing both regular rate and joint employment mandates in December, it announced Nov. 20 in its fall regulatory agenda.
• The rules will implement Fair Labor Standards Act (FLSA) requirements controlling compensation and liability under the law.
• DOL also announced its intent to fast-track plans to revisit Family and Medical Leave Act regulations, moving up a planned Request for Information deadline from April 2020 to November 2019.

Dive Insight:

It's not clear exactly what the two final regulations will contain, but proposed rules from earlier this year may provide some insight.

The FLSA's regular rate requirements spell out which items employers must include in calculating an overtime pay rate for an employee. DOL previously proposed clarifications allowing employers to exclude from that calculation the cost of providing certain wellness programs and benefits, payments for unused paid leave, reimbursed expenses and discretionary bonuses, among other items. The proposal's comment period closed in June; DOL received 86 comments.

DOL's plan to tackle joint employment aims to address an issue that extends well beyond FLSA compliance. Employers have in recent years decried the murkiness surrounding the idea that multiple employers can be held liable for employment law violations if more than one company exercised (or in some cases, had the right to exercise) control over a worker.

The agency in April proposed a 4-factor test that would consider whether an alleged joint employer: 1) hires or fires the employee in question; 2) supervises and controls the employee's work schedule or conditions of employment; 3) determines the employee's rate and method of payment; and 4) maintains the employee's employment records. The comment period for that proposal also closed in June, drawing more than 57,000 comments.

The issue also has arisen with respect to the National Labor Relations Act and nondiscrimination laws. In response, the National Labor Relations Board began rulemaking efforts last year, and the U.S. Equal Employment Opportunity Commission announced plans to enter the fray Nov. 20 in its regulatory agenda. Employers, on the other hand, have urged Congress to step in and mandate one joint employment standard, saying they desperately need clarity and certainty.