Wage and Hour Division – Federal Register Recent Federal Regulation Documents

In this notice of proposed rulemaking (NPRM), the Department proposes to withdraw and repropose two portions of the Tip Regulations Under the Fair Labor Standards Act (FLSA) (2020 Tip final rule) and seeks comment on whether to revise one other portion of the 2020 Tip final rule relating to the statutory amendments to the FLSA made by the Consolidated Appropriations Act of 2018 (CAA). The Department also asks questions about how it might improve the recordkeeping requirements in the 2020 Tip final rule in a future rulemaking. This rulemaking is related to a second NPRM, published elsewhere in this issue of the Federal Register, which proposes to further extend the effective date of three portions of the 2020 Tip final rule in order to complete this rulemaking involving two of those portions and provide the Department additional time to consider whether to withdraw and repropose a third portion of the 2020 Tip final rule concerning the use of the tip credit when employees perform both tipped and non-tipped work.

The Department of Labor (the Department) is soliciting comments concerning a proposed extension of the information collection request (ICR) titled ``Information Collections Pertaining to Special Employment Under the Fair Labor Standards Act.'' This comment request is part of continuing Departmental efforts to reduce paperwork and respondent burden in accordance with the Paperwork Reduction Act of 1995 (PRA). The Department proposes to extend the approval of this existing information collection without change. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. A copy of the proposed information request can be obtained by contacting the office listed below in the FOR FURTHER INFORMATION CONTACT section of this Notice.

This notice of proposed rulemaking (NPRM) proposes to withdraw the final rule titled ``Independent Contractor Status under the Fair Labor Standards Act,'' which was published on January 7, 2021 and the effective date of which is currently May 7, 2021.

Consistent with the Presidential directive as expressed in the memorandum of January 20, 2021, from the Assistant to the President and Chief of Staff, titled ``Regulatory Freeze Pending Review,'' this action finalizes the Department of Labor's proposal to delay until May 7, 2021, the effective date of the rule titled Independent Contractor Status Under the Fair Labor Standards Act (``Independent Contractor Rule'' or ``January 2021 Rule''), which was published in the Federal Register on January 7, 2021, to allow the Department to review issues of law, policy, and fact raised by the rule before it takes effect.

In accordance with the Presidential directive as expressed in the memorandum of January 20, 2021 from the Assistant to the President and Chief of Staff, entitled ``Regulatory Freeze Pending Review,'' this action proposes to delay until April 30, 2021 the effective date of the rule entitled Tip Regulations Under the Fair Labor Standards Act (``Tip Rule''), published in the Federal Register on December 30, 2020. The rule's current effective date is March 1, 2021. WHD seeks comments on this proposed delay, which would allow the Wage and Hour Division additional opportunity for review and consideration of the new rule.

The U.S. Department of Labor (Department) is publishing this final rule to adjust for inflation the civil monetary penalties assessed or enforced by the Department, pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act). The Inflation Adjustment Act requires the Department to annually adjust its civil money penalty levels for inflation no later than January 15 of each year. The Inflation Adjustment Act provides that agencies shall adjust civil monetary penalties notwithstanding Section 553 of the Administrative Procedure Act (APA). Additionally, the Inflation Adjustment Act provides a cost- of-living formula for adjustment of the civil penalties. Accordingly, this final rule sets forth the Department's 2021 annual adjustments for inflation to its civil monetary penalties.

The U.S. Department of Labor (the Department) is revising its interpretation of independent contractor status under the Fair Labor Standards Act (FLSA or the Act) to promote certainty for stakeholders, reduce litigation, and encourage innovation in the economy.

The Department of Homeland Security and the Department of Labor (DOL) are jointly issuing this direct final rule to extend DOL's recently established system of discretionary Secretary of Labor review to H-2B temporary labor certification cases (H-2B cases) pending before or decided by the Department of Labor's Board of Alien Labor Certification Appeals and to make technical, conforming changes to regulations governing the timing and finality of those decisions and of decisions from the Department of Labor's Administrative Review Board in H-2B cases.

The Department of Labor (DOL), as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Wage and Hour Division is soliciting comments concerning the revision to Office of Management and Budget (OMB) approval of the Information Collections: Application for a Farm Labor Contractor or Farm Labor Contractor Employee Certificate of Registration. A copy of the proposed information collection request can be obtained by contacting the office listed below in the FOR FURTHER INFORMATION CONTACT section of this Notice.

The U.S. Department of Labor (the Department) is revising its interpretation of independent contractor status under the Fair Labor Standards Act (FLSA or Act) in order to promote certainty for stakeholders, reduce litigation, and encourage innovation in the economy.

The Wage and Hour Division (WHD) of the U.S. Department of Labor (the Department) is issuing this notice to announce the applicable minimum wage rate for workers performing work on or in connection with federal contracts covered by Executive Order 13658, Establishing a Minimum Wage for Contractors (the Executive Order or the Order), beginning January 1, 2021. Beginning on that date, the Executive Order minimum wage rate that generally must be paid to workers performing work on or in connection with covered contracts will increase to $10.95 per hour, while the required minimum cash wage that generally must be paid to tipped employees performing work on or in connection with covered contracts will increase to $7.65 per hour.

The Department of Labor (Department) is seeking information from the public regarding the regulations implementing the Family and Medical Leave Act of 1993 (FMLA or the Act). The Department is publishing this Request for Information (RFI) to gather information concerning the effectiveness of the current regulations and to aid the Department in its administration of the FMLA. The information provided will help the Department identify topics for which additional compliance assistance could be helpful, including opportunities for outreach to ensure employers are aware of their obligations under the law and employees are informed about their rights and responsibilities in using FMLA leave.

In accordance with section 210(b) of the United States-Mexico- Canada Agreement Implementation Act, the U.S. Department of Labor is issuing regulations necessary to administer the high-wage components of the labor value content requirements as set forth in section 202A of that Act.

The Department of Labor (the Department) is revising its regulation for computing overtime compensation of salaried nonexempt employees who work hours that vary each week (fluctuating workweek) under the Fair Labor Standards Act (FLSA or the Act). The final rule clarifies that payments in addition to the fixed salary are compatible with the use of the fluctuating workweek method of compensation, and that such payments must be included in the calculation of the regular rate as appropriate under the Act. The Department also adds examples and makes minor revisions to make the rule easier to understand.

Section 7(i) of the Fair Labor Standards Act (FLSA or Act) provides an exemption from the Act's overtime compensation requirement for certain commissioned employees employed by a retail or service establishment. In this final rule, the Department of Labor (Department) withdraws the ``partial list of establishments'' that it previously viewed as having ``no retail concept'' and categorically unable to qualify as retail or service establishments eligible to claim the section 7(i) exemption; and the ``partial list of establishments'' that, in its view, ``may be recognized as retail'' for purposes of the exemption. Removing these lists promotes consistent treatment when evaluating section 7(i) exemption claims by treating all establishments equally under the same standards and permits the reevaluation of an industry's retail nature as developments progress over time. This withdrawal will also reduce confusion, as the list of establishments that ``may be recognized as retail'' did not necessarily affect the analysis as to whether any particular establishment was, in fact, retail.

The Department of Labor published in the Federal Register on April 6, 2020, a temporary rule to implement public health emergency leave under Title I of the Family and Medical Leave Act (FMLA), and emergency paid sick leave to assist working families facing public health emergencies arising out of Coronavirus Disease 2019 (COVID-19) global pandemic. The leave is created by a time-limited statutory authority established under the Families First Coronavirus Response Act (FFCRA), and is set to expire on December 31, 2020. The FFCRA and the temporary rule do not affect the FMLA after December 31, 2020. Through publication of this document, the Department corrects certain preamble and regulatory text.

The Department of Labor is issuing this Notice of Proposed Rulemaking to seek public comments on a proposal to establish a system of discretionary secretarial review over cases pending before or decided by the Board of Alien Labor Certification Appeals and to make technical changes to Departmental regulations governing the timing and finality of decisions of the Administrative Review Board and the Board of Alien Labor Certification Appeals to ensure consistency with the new discretionary review processes proposed in this rule and established in Secretary's Order 01-2020.

The Department of Labor, Wage and Hour Division announces that the Office of Management and Budget (OMB) has approved certain collections of information listed in the SUPPLEMENTARY INFORMATION below, following the Wage and Hour Division's submission of requests for approvals under the Paperwork Reduction Act of 1995 (PRA). This notice describes the information collections that have been approved or re-approved, the corresponding OMB Control Numbers, and their current expiration dates.

The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Wage and Hour Division is soliciting comments concerning its proposal to extend Office of Management and Budget (OMB) approval of the Information Collection: Disclosures to Workers Under the Migrant and Seasonal Agricultural Worker Protection Act. A copy of the proposed information request can be obtained by contacting the office listed below in the FOR FURTHER INFORMATION CONTACT section of this Notice.

The U.S. Department of Labor (Department) is publishing this final rule to adjust for inflation the civil monetary penalties assessed or enforced by the Department, pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act). The Inflation Adjustment Act requires the Department to annually adjust its civil money penalty levels for inflation no later than January 15 of each year. The Inflation Adjustment Act provides that agencies shall adjust civil monetary penalties notwithstanding Section 553 of the Administrative Procedure Act (APA). Additionally, the Inflation Adjustment Act provides a cost- of-living formula for adjustment of the civil penalties. Accordingly, this final rule sets forth the Department's 2020 annual adjustments for inflation to its civil monetary penalties.

This document extends the period for submitting written comments on the Notice of Proposed Rulemaking (NPRM) entitled ``Tip Regulations Under the Fair Labor Standards Act (FLSA).'' The comment period now ends on December 11, 2019. The Department of Labor (Department) is taking this action to provide interested parties additional time to submit comments in response to an outage causing most web browsers to refuse access to Regulations.gov for a period of time.

In accordance with the Paperwork Reduction Act (PRA), the Wage and Hour Division (WHD) is providing notice to the public that the WHD sponsored information collection request (ICR) titled, ``Records to be Kept by EmployersFair Labor Standards Act,'' has been approved by the Office of Management and Budget (OMB). WHD is notifying the public that the information collection has been revised and extended effective immediately through November 30, 2022.

The Department of Labor (DOL) is soliciting comments concerning a proposed extension to the information collection request (ICR) titled, ``Application of the Employee Polygraph Protection Act.'' This comment request is part of continuing Departmental efforts to reduce paperwork and respondent burden in accordance with the Paperwork Reduction Act of 1995 (PRA). This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. A copy of the proposed information request can be obtained by contacting the office listed below in the FOR FURTHER INFORMATION CONTACT section of this Notice.

In this final rule, the Department of Labor (Department) revises its regulations issued pursuant to the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), the H-2A provisions of the Immigration and Nationality Act (H-2A), the Fair Labor Standards Act (FLSA), and the Employee Polygraph Protection Act (EPPA) governing the payment of civil money penalties (CMPs) assessed by the Wage and Hour Division (WHD). The regulatory revisions expand the CMP payment methods beyond the options specified in the current text by allowing for the payment of CMPs through an electronic payment alternative, and otherwise amend the regulations to ensure uniform payment instructions. The existing MSPA, H-2A, FLSA, and EPPA regulations require persons assessed a CMP under those statutory schemes to remit payment in person or by mail using a certified check or money order. In recognition of modern payment methods, the Department is amending these regulations to allow for payment of the CMPs via an electronic payment alternative, any successor system, or by any additional payment method that the Department may deem acceptable in the future. This action revises the regulatory text in the appropriate regulations administered by WHD. This action is intended to simplify payment methods for persons assessed a CMP, and does not impose any new regulatory requirements.

The Department of Labor (DOL), as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Wage and Hour Division is soliciting comments concerning the revision and extension to Office of Management and Budget (OMB) approval of the Information Collections: Application for a Farm Labor Contractor or Farm Labor Contractor Employee Certificate of Registration. A copy of the proposed information collection request can be obtained by contacting the office listed below in the FOR FURTHER INFORMATION CONTACT section of this Notice.