Expect Joint Employer Rulemakings By End of the Year

November 26, 2019
Publication
Inside HR
HR Compliance
Read time: 2 mins

On November 20, the Fall 2019 Unified Agenda of Regulatory and Deregulatory Actions was posted, with joint employer rules at the DOL’s Wage and Hour Division (WHD), National Labor Relations Board (NLRB), and the Equal Employment Opportunity Commission (EEOC) standing out among the many expected regulatory actions.

WHD rule list. Likely of greatest interest to stakeholders, is the final rule, "Joint Employer Status Under the Fair Labor Standards Act" (1235-AA26), which the WHD expects to publish by the end of 2019. The DOL believes that changes in the 21st century workplace are not reflected in its current regulatory framework. The rule hasn’t been "meaningfully revised since its promulgation over 60 years ago," according to the DOL. The proposed changes are intended to provide clarity to the regulated community, enhance compliance, and help promote greater uniformity among court decisions nationwide.

Other anticipated WHD regulatory actions include the following:

  • Request for information (November 2019): The Family and Medical Leave Act of 1993 (1235-AA30).
  • Proposed rule stage (comment period ends 12/09/19): Tip Regulations Under the Fair Labor Standards Act (1235-AA21).
  • Proposed rule stage (NPRM June 2020): Modernizing Section 3(m) Regulations (1235-AA29).
  • Proposed rule stage (comment period ends 12/5/19): Fluctuating Workweeks Under the Fair Labor Standards Act (1235-AA31).
  • Final rule stage (November 2019): Regular and Basic Rates Under the Fair Labor Standards Act (1235-AA24).

At the NLRB. Also standing out at the NLRB is the Board’s own controversial "Joint Employer Rulemaking" (3142-AA13), a change made for the first time via regulations instead of case determinations. The final rule, expected by the end of the year, will establish the standard for determining joint-employer status under the National Labor Relations Act.

Other regulatory actions that the Board anticipates include:

  • Proposed rule stage (NPRM February 2020): Access Rule (3142-AA14).
  • Proposed rule stage (comment period ends 11/22/19): Student/Employee Status (3142-AA15).
  • Proposed rule stage (comment period ends 12/10/19); Blocking Charge, Voluntary Recognition, and 9(a) (3142-AA16).
  • Final rule stage (November 2019): Revision of Representation Case Rules (1) (3142-AA12).
  • Final rule stage (January 2020) Revision of Representation Case Rules (2) (3142-AA17).

EEOC regulatory actions. The EEOC will also be addressing the joint employer issue. The Commission expects to publish a proposed rule, "Joint Employer Status Under the Federal Equal Employment Opportunity Statutes" (3046-AB16), by the end of the year. The proposal will explain the EEOC's interpretation of when an entity qualifies as a joint employer based on the definitions of the statutory terms "employee" and/or "employer" under the federal EEO laws.

Source: CCH/Wolters Kluwer