Department of Labor Compliance News & Resources
The U.S. Department of Labor (DOL) exists to help ensure the welfare of workers, job seekers, and retirees as well as acceptable working conditions, benefits, rights, and profitable employment. It’s impact on you as an employer is crucial, so we have compiled DOL workplace news and resources to help you stay on top of what’s happened so far this year.
If you’re looking specifically for occupational safety, be sure to check out the OSHA page.
Be sure to seek legal counsel when you’re looking for how these changes will directly impact your business.
Who: All employers with tipped employees
When: Effective immediately
The U.S. Department of Labor’s (DOL) rule regarding tip credits went into effect on December 28, 2021, and allowed employers to take a tip credit only if the employee spent no more than 20% of their time per week and no more than 30 minutes consecutively performing non-tipped work, such as cleaning tables. On August 23, 2024, the Fifth Circuit Court of Appeals ruled in the case of Restaurant Law Center and Texas Restaurant Association v. U.S. Department of Labor and vacated the. The law is no longer in effect, which affects employers with tipped employees nationwide.
The court stated that the DOL rule violated the Administrative Procedures Act because it contradicted the statutory text of the Fair Labor Standards Act (FLSA) and was arbitrary and capricious. The FLSA permits employers to pay tipped employees $2.13 per hour as long as the combination of that wage and tips equals the $7.25 federal hourly minimum wage (or the state minimum wage, if higher). The ruling will likely result in a significant decrease in the number of wage and hour claims against employers.
How: Review the applicable local or state laws regarding tip credits to ensure compliance.
Additional Resources:
Who: All employers
When: Effective immediately
On April 29, 2024, the U.S. Department of Labor (DOL) issued guidance on the potential risks associated with the use of automated systems and AI tools in the workplace. The guidance complies with President Biden’s October 2023 Executive Order addressing artificial intelligence.
Field Assistance Bulletin No. 2024-1 (FAB), titled Artificial Intelligence and Automated Systems in the Workplace under the Fair Labor Standards Act and Other Federal Labor Standards, covers hours worked and wages paid. It also addresses the implications for other laws, such as the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), and the Employee Polygraph Protection Act (EPPA).
The FAB addresses some potentially problematic uses of AI under the FLSA, such as monitoring employee productivity and tracking employee locations. Other potential problems are incorrectly categorizing time as non-compensable based on productivity and automatically populating employee non-compensable break time. This could lead to claims of intentionally altering employee timesheets and willful non-payment of wages and overtime pay, which can lead to payroll audits and the assessment of back wages and penalties. Employers must pay for time spent working “regardless of the level of productivity or performance of the employee,” meaning tracking systems cannot define or calculate “work time.”
The FAB cautions that employers who use AI to process and evaluate FMLA leave requests and certifications could be at risk of violating the law. For example, AI may incorrectly and automatically penalize employees for missing FMLA certification deadlines without accounting for extenuating, allowable circumstances. Relying on an automated process to take the place of the interactive process of providing a leave of absence as a reasonable accommodation could expose the employer of neglecting their duty of due diligence.
The FAB notes that under EPPA, the use of AI to measure eye movement, voice, and other body movements that could indicate if an employee is lying could violate the law. Under the PUMP Act, it could be a violation if employee-tracking AI software inadvertently penalizes employees for making use of taking time to express milk, such as by artificially limiting the length, frequency, or time of the breaks.
The FAB cautions employers not to use AI to surveil employees because such an action may violate anti-retaliation prohibitions in federal labor and employment statutes. For example, software that analyzes employee survey responses and data might constitute unlawful retaliation with regard to the right to unionize or assemble to effect wages and working conditions under the National Labor Relations Act (NLRA).
To address all of these concerns, the employer should oversee all AI-influenced functions and evaluate vendor software packages to ensure compliance with various laws.
An employer may not rely on the fact that they don’t know how an AI system operates as a defense to a complaint. Employers must understand how the tools work, including the factors considered when screening resumes or evaluating employee performance. Employers are responsible for implementing appropriate procedural safeguards to ensure that employment decisions are based on clear and lawful criteria.
How:
- Review your use of AI tools to ensure all AI-influenced employment decisions comply with the law.
- Ensure that when purchasing AI software from vendors that the software and system processes do not violate employee rights under Civil Rights Act, ADA, NLRA and other protective laws.
- Ensure human oversight of AI in the workplace.
Additional Resources:
Field Assistance Bulletin No. 2024-1
Artificial Intelligence and Equal Employment Opportunity for Federal Contractors
Who: All employers
When: Effective July 1, 2024
The U.S. Department of Labor (DOL) published a final rule that increases the salary thresholds that employers must pay salaried executive, administrative, and professional employees in order to exempt those employees from federal overtime pay requirements. Effective July 1, 2024, the salary threshold is increasing from $35,568 to $43,888. Effective January 1, 2025, the threshold will increase again to $58,656. Note that certain positions, such as doctors, lawyers, teachers, and outside salespeople, are not subject to the minimum salary basis test. The threshold will increase every three years, starting July 1, 2027. The purpose is to protect more lower-paid workers who work long hours without proper compensation.
To be considered exempt, an employee must be an executive, administrative, or professional worker as defined in the regulation, plus meet three criteria: 1) be paid on a salary basis, 2) be paid a salary that is at least as much as the annual threshold amount, and 3) perform executive, administrative, or professional duties as defined in the regulation. These criteria are commonly referred to as the Salary Basis Test and the Job Duties Test. If the employee doesn’t meet those criteria, the employer must pay time and a half for all hours worked in excess of 40 per week.
Employers should check for state-specific overtime laws. California, for example, has rules regarding daily overtime, weekly overtime, and 7th consecutive day overtime.
The rule also increases the annual salary threshold for highly compensated employees from $107,432 to $132,964 on July 1, 2024. Effective January 1, 2025, the threshold will increase again to $151,164 per year. This threshold will also increase every three years.
There are exemptions from the new law for “learned professionals,” including certified teachers, physicians, and attorneys. To qualify as a learned professional, these tests must be met:
- The employee must be compensated on a salary or fee basis at a rate of $684 per week or greater;
- The employee’s primary duty must be performing work that requires advanced knowledge;
- The advanced knowledge is in a field of science or learning; and
- The advanced knowledge is customarily acquired by a prolonged course of specialized intellectual instruction.
Employers need to pay attention to state and local laws, which could have higher salary thresholds for these exemptions.
Note that misclassification lawsuits and penalties can reach back as far as three years.
Complainants have brought a lawsuit against the DOL to challenge the new rule.
How:
- Conduct thorough analyses of exempt positions using the Salary Basis and Job Duties Tests.
- Consult a qualified employment law attorney if your internal audit uncovers any possible position current or past misclassifications.
- Assess your pay rates and decide whether to raise affected employees’ salary to meet the new threshold or convert them to non-exempt status.
- Provide advance notice of wage and benefit changes to the employees, and how it will affect their responsibilities regarding timekeeping, meal and rest breaks, and other requirements.
- Train managers and newly non-exempt employees on the changes that will take effect.
- Monitor for challenges to the law.
Additional Resources:
Fact Sheet #17D: Exemption for Professional Employees Under the Fair Labor Standards Act (FLSA)
Who: All employers
When: Effective March 11, 2024
The U.S. Department of Labor (DOL) published a final rule—”Employee or Independent Contractor Classification Under the Fair Labor Standards Act”—on January 9, 2024. The final rule goes into effect on March 11, 2024, and replaces the 2021 Independent Contractor Rule.
The new rule explains how employers must determine if a worker is an employee or an independent contractor. Classifying workers correctly ensures employers pay the correct minimum wage and follow overtime rules properly. The DOL stated that the final rule will help protect the most vulnerable workers from misclassification as independent contractors.
The new rule restores the requirement to analyze multiple factors and consider the totality of the circumstances when classifying a worker. The factors include:
- The worker’s opportunity for profit or loss;
- The amount of investment a worker has invested as compared to the employer;
- The degree of permanence of the work relationship between employee and employer;
- The extent and nature of control the employer has over the person’s work;
- Whether the work is critical, necessary, or central to the business; and
- Whether the worker uses specialized skills that are indicative of business-like initiative.
The new rule allows for the analysis of additional factors if they are “relevant to the overall questions of economic independence.” The new rule also clarifies that when an employer controls the person’s work to comply with specific legal requirements, it does not necessarily indicate that the person should be classified as an employee.
Employers must be aware of other state or local laws that affect employee classification.
How:
- Conduct an audit to assess your level of risk for misclassification.
- Analyze your independent contractors’ work to determine if you need to reclassify them as employees.
- Update your policies as needed.
- Train managers on how to classify workers correctly.
- Work with legal counsel as needed to ensure compliance with the rule.
Additional Resources:
Employee or Independent Contractor Classification under the Fair Labor Standards Act Final Rule
When: Effective immediately
On September 8, 2023, the Office of Federal Contract Compliance Programs (OFCCP) published the Corporate Scheduling Announcement List (CSAL), which names the 1,000 supply and service federal contractors and subcontractors that the agency will subject to a compliance audit. The agency published its methodology for determining which companies it will audit, as well as an FAQ document.
The procedures for notifying CSAL auditees have changed. Now, the agency may choose to audit a named company immediately after publishing the CSAL. The OFCCP can now issue a scheduling letter via email with a read receipt requested, along with a new itemized list of the data it requires. The company must submit that data within 30 days.
How:
- Check the list to see if you are on it, and, if so, conduct a risk-management review and prepare for the audit by gathering and submitting the data listed in the notification letter.
- If you are on the CSAL list in error, notify the agency by emailing ofccp-dpo-scheduling@dol.gov.
Additional Resources:
Pre-enforcement Notice and Conciliation Procedures Revised Regulations
Corporate Scheduling Announcement List (CSAL) Frequently Asked Questions
Corporate Scheduling List Resources
Methodology for Developing the Supply and Service Scheduling List FY 2023, Release – 2
Figure F-3: Combined Scheduling Letter and Itemized Listing
Compliance Assistance Guide
When: Submit comments by October 30, 2023
The Occupational Safety and Health Administration (OSHA) has proposed a change in 29 C.F.R. § 1903.8(c) regarding who employees can designate as their representative to accompany OSHA compliance officers during physical workplace inspections. Specifically, they may designate an employee OR a third party when they deem that the presence of that third party is reasonably necessary to aid in the inspection. The proposed rule clarifies that third-party representatives are not limited to the two job categories—industrial hygienists or safety engineers—included in the existing rule.
Under existing law, employers are entitled to request that certain areas that contain trade secrets be off-limits to employee representatives who do not work in that specific area of the workplace. That does not change under the proposed rule.
The agency is accepting public comments on the proposed regulation via Regulations.gov through October 30, 2023, under Docket No. OSHA-2023-0008. After reviewing the public comments, the agency will issue a final rule and publish it in the Federal Register.
How:
- Submit your comments on the proposed rule at Regulations.gov by October 30, 2023.
- Consult with legal counsel and be sure you understand your rights during an OSHA inspection.
- Monitor for the release of the final regulation and potential legal challenges to the rule.
Additional Resources:
Who: Hospitality employers
When: Effective immediately
Federal wage and hour law allows hospitality employers to pay tipped employees less than the minimum hourly wage if employees earn enough in tips to make up the difference—known as the “tip credit.” The U.S. Department of Labor’s 80/20 rule states that if an employee spends more than 20% of their time performing non-tipped side work (“directly supporting work”) such as cleaning, setting tables, making coffee, or preparing salad, the employer may not use the tip credit for that employee and must pay at least the minimum wage. Employers may also lose the tip credit for employees that do directly supporting work for a continuous period that exceeds 30 minutes.
In response to the rule, several restaurant industry groups filed a lawsuit against the U.S. Department of Labor (DOL). They want the court to strike down the 80/20 rule. They argued that it is, “arbitrary, capricious, contrary to the FLSA, promulgated in violation of the Administrative Procedures Act, and a violation of separation of powers.”
At the beginning of the suit, the plaintiffs filed a motion requesting a preliminary injunction that would keep the new rule from being enforced while they proceeded with their suit. The district court denied the motion, the group appealed it, the 5th U.S. Circuit Court of Appeals found in their favor and instructed the district court to conduct a complete analysis. Upon considering the motion again, the district court again found that the group could not demonstrate irreparable harm and the rule was not arbitrary and capricious or in contradiction with the FLSA. On July 6, 2023, the court denied the motion for a preliminary injunction. The suit will proceed, and the 80/20 rule still applies to hospitality employers, for now.
How:
- Continue to monitor for a possible appeal in September.
- Review your state laws pertaining to the tip credit.
- Provide a tip credit notice to employees where applicable.
- Update your policies and procedures for timekeeping, performing directly supporting work, opening, and closing as needed to comply with the law.
- Train managers on the 80/20 rule and the categories of work for tipped employees.
Additional Resources:
Tip Regulations under the Fair Labor Standards Act (FLSA)
Fact Sheet #15: Tipped Employees Under the Fair Labor Standards Act (FLSA)
Who: Federal construction contractors and subcontractors
When: Effective immediately
The Office of Federal Contract Compliance Programs (OFCCP) released its FY 2023 Construction Corporate Scheduling Announcement List (CSAL) on June 5, 2023, which identifies the 250 federal construction contractors and subcontractors that will be subject to a full OFFCCP compliance review. The OFCCP’s Office of Management and Budget (OMB) will send a letter to those selected, who then have 30 days to submit their data to comply with the audit request.
The OFCCP offers information and resources for contractors/subcontractors, such as a description of the methodology they used to select companies for audit, construction compliance FAQS, and compliance assistance guides.
How:
- Check to see if you are on the 2023 Construction CSAL.
- Ensure your affirmative action program is legally compliant.
Additional Resources:
Methodology for Developing the Construction Scheduling List FY 2023
Construction Compliance Frequently Asked Questions
Corporate Scheduling Announcement Lists
Compilation of resources and best practices for construction contractors
Who: All employers
When: Effective immediately
The U.S. Department of Labor (DOL) announced that they have created a new website as part of the agency’s Mental Health at Work initiative. The site presents tools and resources for employers and employees in an effort to increase awareness of mental health and wellbeing at work and promote equal access to mental health care. The agency is working to help employers be more confident when talking to employees about workplace stress, mental health, and substance use disorders, and to help employees feel less afraid to broach those subjects.
The agency reports that work-related stress is a significant problem in the United States and that mental health care is just as important as physical health care. The site defines what is required by law and ways an employer can support workers’ mental health.
How:
- Familiarize yourself with the resources available on the new site.
Additional Resources:
Department of Labor Mental Health at Work
Occupational Safety and Health Administration Workplace Stress
Department of Labor Preventing Substance Use in the Workforce
Who: Employers with 50 or more workers
When: Effective immediately
In April 2023, the U.S. Department of Labor released updated versions of the Fair Labor Standards Act (FLSA) Poster and the Family and Medical Leave Act Poster.
The new FLSA poster updates the Nursing Mothers section with information about the Provide Urgent Maternal Protections for Nursing Mothers Act (PUMP) and changes the name of the section to “Pump at Work.” PUMP requires employers to provide reasonable break times to express milk for one year after the child’s birth. Employers must provide a private place other than a bathroom that is shielded from view and free from intrusion by coworkers and the public. The August 2016 version of the Fair Labor Standards Act Poster is noncompliant, and employers must replace it immediately.
The agency redesigned the FMLA Poster with minor updates to clarify that:
- FMLA is not paid leave. The employee may choose, or may be required by the employer, to use employer-provided paid leave during FMLA leave.
- An employee must be able to return to the same or a virtually identical job with the same pay, benefits, and other working conditions at the end of the leave.
- Employers may request certification for FMLA leave an employee takes because of a qualifying exigency.
- Employers must provide written notice to the employee of the employee’s rights and responsibilities and how much of their requested leave will be FMLA-protected.
The 2013 and 2016 versions of the Family Medical Leave Act Poster still fulfill the legal posting requirements.
How:
- Post the new versions of the Fair Labor Standards Act (FLSA) as well as the Family and Medical Leave Act (FMLA) posters to be viewable to employees and applicants.
Additional Resources:
Fair Labor Standards Act (FLSA) Poster
Family and Medical Leave Act (FMLA) Poster
Department of Labor Workplace Posters
Fact Sheet#28B: Using FMLA Leave When You Are in the Role of a Parent to Child
Effective July 25, 2023: OFCCP Releases Revised Form For Voluntary Self-Identification Of Disability
Who: Federal contractors and subcontractors
When: Effective July 25, 2023
The Office of Federal Contract Compliance Programs (OFCCP) revised the Voluntary Self-Identification of Disability Form (CC-305) to update the preferred language for disabilities and give additional examples of disabilities. Federal contractors and subcontractors must start using the new form no later than July 25, 2023. The form expires on April 30, 2026.
Covered employers must ask applicants to complete the form during the pre-offer stage of the hiring process and ask current employees to complete the form on a voluntary basis. The form is available in a PDF or Word format. Employers may choose to remove or modify the “For Employer Use Only” section of the form.
Under Section 503 of the Rehabilitation Act, employers must attain or show progress toward attaining a workforce that consists of at least seven percent of people with disabilities.
How:
- Implement the new form into your applicant and employee systems and processes by July 25, 2023.
Additional Resources:
Office of Federal Contract Compliance Programs Voluntary Self-Identification of Disability Form
Who: All employers
When: Effective immediately
The Department of Labor (DOL) conducts annual reviews of its civil monetary penalties to determine the inflation-indexed penalties for the coming year. The DOL is responsible for enforcing a wide range of federal laws, including the Fair Labor Standards Act, the Employee Retirement Income Security Act, and the Family and Medical Leave Act.
The new schedule applies to penalties assessed after January 15, 2023, for violations that occurred after November 2, 2015. Examples of penalty increases for 2023 are as follows:
- Failure to provide a summary of benefits and coverage: increased from $1,264 to $1,362
- Failure to file Form 5500 for ERISA plans: increased from $2,400 to $2,586 per day
- Violation of the Genetic Information Nondiscrimination Act (GINA): increased from $127 to $137 per day per participant
- Failure to provide disclosures related to Medicaid or the children’s health insurance program (CHIP): increased from $127 to $137 per day per participant
- Failure to post the Family and Medical Leave Act posters: increased from $189 to $204
- Violation of the federal minimum wage or overtime requirements: increased from $2,203 to $2,374
The Final Rule lists the types of violations and the associated penalties for 2023.
How:
- Familiarize yourself with the new penalty amounts.
- Review your pay practices, benefit plan administration practices, and safety protocols to ensure compliance with federal laws.
Additional Resources:
Who: All employers
When: Effective immediately
On March 24, 2023, the U.S. Departments of Labor and Health and Human Services announced that they are taking additional steps to combat the exploitation of child labor in the U.S. The two departments signed a formal agreement that outlines the procedures they will use to work together, including coordination, information sharing, education, and training. Their intention is to maximize efforts to enforce the child labor protections of the Fair Labor Standards Act and connect affected individuals with the benefits and services they need.
How:
- Use the DOL Compliance Assistance Toolkit to ensure compliance with federal child labor laws.
Additional Resources:
Who: Federal contractors and subcontractors
When: By June 29, 2023
In 2021, the Office of Federal Contract Compliance Programs (OFCCP) implemented a new rule that requires all covered federal contractors and subcontractors to annually certify that they have current affirmative action plans in place for each of their establishments or functional units as applicable. The purpose is to ensure that applicants and employees of federal contractors have equal employment opportunity without regard to their race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran.
The OFCCP announced on March 20, 2023, that the certification deadline for 2023 is June 29. The OFCCP Contractor Portal opened on March 31, 2023. Contractors that do not certify compliance will appear on the OFCCP’s list of contractors the agency will audit.
An exception to the certification deadline is those employers that are new federal contractors or subcontractors. They have up to 120 days to create an affirmative action plan and 90 days after implementation to register for a certificate.
Another exception is construction contractors that are not also supply and service contractors. They remain exempt from the certification requirement.
How:
- Certify on the OFCCP Contractor Portal that you have developed and maintained an affirmative action plan as required by June 29, 2023.
Additional Resources:
Office of Federal Contract Compliance Programs Contractor Portal Frequently Asked Questions
Office of Federal Contract Compliance Programs Contractor Portal
Who: Federal contractors
When: Effective immediately
Effective March 31, 2023, the Office of Federal Contract Compliance Programs (OFCCP) updated the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) hiring benchmark to 5.4%, which is lower than the previous year’s benchmark of 5.5%. Contractors who are required by VEVRAA to develop a written affirmative action plan must also establish a hiring benchmark for protected veterans every year, or adopt the benchmark set by the OFCCP.
How:
- Review and update your veteran hiring benchmark as needed.
Additional Resources:
Vietnam Era Veterans’ Readjustment Assistance Act
Office of Federal Contract Compliance Programs Veteran Resources
Who: Federal contractors
When: Effective immediately
Effective March 31, 2023, the Office of Federal Contract Compliance Programs (OFCCP) rescinded its 2020 rule’s expansion of the religious exemption for federal contractors and therefore returned to the previous version of the rule. The agency took this action to protect workers from discrimination and safeguard the principles of religious freedom.
The OFCCP’s rescission preserves the Executive Order 11246 religious exemption and does not change religious entities’ ability to pursue federal contracts. Fewer religious organizations will qualify for religious exemptions under the reinstated rule, but the agency states that the rescission inherently protects the rights of LGBTQ people and other groups that have been discriminated against on religious grounds.
How:
- Review your employment policies and practices that favor employees and applicants with certain religious beliefs to ensure you are not violating Title VII.
Additional Resources:
Notice of Rescission of Directive 2018-03
OFCCP Announces Return to Longstanding Policy, Practice on Religious Exemption
Who: All employers
When: Effective immediately
Under the Family and Medical Act (FMLA), eligible employees of covered employers can take up to 12 weeks of unpaid, job-protected leave for specified family and medical reasons. In celebration of the 30th anniversary of the FMLA, the Federal Department of Labor launched a new website with new and updated resources related to the Act, including general guidance, fact sheets, model forms, and a model FMLA poster. There are also links to resources such as interactive tools, interpretative guidance, laws, and regulations.
How:
- Post the FMLA model poster in the workplace.
Additional Resources:
U.S. Department of Labor Family and Medical Leave Act Website
Who: All employers
When: Effective immediately
The U.S. Department of Labor (DOL) Wage and Hour Division released Field Assistance Bulletin 2023-1 on February 9, 2023. It explains how employers can:
- Pay teleworkers properly under the Fair Labor Standards Act (FLSA);
- Under the Fair Labor Standards Act (FLSA), provide reasonable break time for nursing employees to express milk while teleworking; and
- Properly apply eligibility rules under the Family and Medical Leave Act (FMLA) to teleworking employees.
The guidance states that rest breaks of 20 minutes or less are considered compensable time under the FLSA, whether the employee is working remotely or in the office. Off-duty periods of more than 20 minutes are not compensable times. To be considered a true break, the employee must be completely relieved of duty during that time. Otherwise, the time must be considered compensable.
Under the FLSA, employers must allow an employee a reasonable break time to express breast milk while working from home. An employee that expresses milk at home must be free from observation by a work-related computer camera, security camera, or web conferencing while expressing breast milk. Lactation breaks are compensable only if that employer provides compensated breaks to all employees as a matter of course. If an employee is expressing milk off-camera and completing other duties, such as attending a web conference, the employer must compensate that employee for that time.
Teleworking employees are eligible for FMLA leave on the same basis as employees at the worksite. Therefore, a remote employee is considered eligible for the leave when the employer has 50 or more employees employed within 75 miles of the worksite AND the employee has worked 1,250 hours in the previous 12 months. For this purpose, the worksite is not the employee’s home or other remote location; rather, it’s the worksite they report to or from which their assignments are made. Accordingly, an employee is FMLA eligible as long as 50 or more employees are employed within 75 miles of the location to which they report or from which their assignments are made, including telework employees who report to that worksite.
The DOL also released Opinion Letter FMLA2023-1-A, which explains that an eligible employee with a serious health condition that requires them to work limited hours may use FMLA leave to work “a reduced number of hours per day (or week) for an indefinite period of time” until such time the employee exhausts their FMLA leave entitlement. If they do not exhaust their leave, they can work the reduced schedule indefinitely. Voluntary overtime hours not worked may not be counted against the employee’s FMLA entitlement.
How:
- Review all federal, state, and local laws regarding paid and unpaid leave, compensable break times, and lactation accommodation. Update your policies as needed to comply with all applicable laws and the new guidance.
Additional Resources:
Who: Federal contractors and subcontractors
When: Effective immediately
On January 20, 2023, the Office of Federal Contract Compliance Programs (OFCCP) released its 2023 Corporate Scheduling Announcement. The list notifies 500 supply and service establishments that they will be audited in the coming year.
All federal contractors and subcontractors should check to see if they have been selected for audit so they can prepare accordingly. There are different types of audits, including a full compliance review, corporate management compliance evaluation, and functional affirmative action program review.
How:
- Check the list to see if you’ve been selected for audit. Go to the website, choose FY 2023 CSAL Supply & Service Scheduling List, and download the Excel file. Check for your name there.
- Review your affirmative action programs and other regulatorily required documents and postings to ensure compliance.
Additional Resources:
2023 Corporate Scheduling Announcement List
Office of Federal Contract Compliance Programs Events Calendar
Corporate Scheduling Announcement List (CSAL) Frequently Asked Questions
Who: All employers
When: Effective immediately
Effective January 17, 2023, civil penalties for Occupational Safety and Health Act (OSHA) violations increased based on cost-of-living adjustments. The maximum penalty for serious and other-than-serious violations increased from $14,502 to $15,625 per violation. The maximum penalty for willful or repeated violations increased from $145,027 to $156,259 per violation.
How:
- Review the OSHA penalty page for more information.
Additional Resources:
Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2023 Final Rule
Who: All employers
When: Effective immediately
The U.S. Department of Labor (DOL) created a new website that helps explain workplace protections for workers who have cancer or have family members with cancer. The website has information about:
- The federal Family and Medical Leave Act (FMLA);
- Relevant state FMLA and disability laws;
- Accommodation under the Americans with Disabilities Act (ADA);
- Paid sick leave policies; and
- Discrimination prohibitions.
The new resources include a guide for talking to an employer about taking time off for medical and family reasons, guidance for employers on how to have FMLA discussions with employees, and a flyer for healthcare providers that explains FMLA rules about medical certifications.
How:
- Share the new resources with managers and HR personnel.
Additional Resources:
Who: Federal government contractors
When: Effective January 1, 2023
Under Executive Order 14026, the minimum wage for employees of federal contractors will increase from $15.00 per hour to $16.20 per hour to keep pace with inflation. The minimum wage for covered tipped employees will increase from $10.50 per hour to $13.75 per hour. The change applies to federal contracts entered into after January 30, 2022, and existing contracts extended or renewed after that date.
Executive Order 13658 may apply to federal contracts renewed or extended prior to January 30, 2022. EO 13658 has lower minimum wage requirements than EO 14026. Effective January 1, 2023, the applicable minimum wage is $12.15 per hour and $8.50 per hour for tipped employees.
Once they are released, employers must post the notices that explain Worker Rights Under Executive Order 14026 and Worker Rights Under Executive Order 13658 in the workplace.
How:
- Monitor for the release of the Worker Rights Under Executive Order 14026 and the Worker Rights Under Executive Order 13658 posters and post them once they are released.
Additional Resources:
Who: All employers
When: Comments due December 13, 2022
On October 13, 2022, the U.S. Department of Labor (DOL) published a proposed rule that revises its guidance on how to determine if a worker is an independent contractor or an employee under the federal Fair Labor Standards Act (FLSA). Comments from the public were originally due on November 28, 2022, but the DOL extended the due date until December 13, 2022.
Currently, employers use the 2021 Independent Contractor Rule, which takes into account the following factors, with the first two factors being weighted most heavily:
- The worker’s opportunity for profit or loss;
- The nature and degree of the employer’s control over the work;
- The degree of permanence of the working relationship; and
- The extent to which the worker’s duties are an integral part of the employer’s business; and
- The level of skill and initiative required to do the work;
The proposed rule would rescind the 2021 rule and implement a multifactor, totality-of-the-circumstances test that considers several factors, with all of them being weighted equally:
- The worker’s opportunity for profit or loss depending on managerial skill;
- The relative investments by the worker and employer;
- The degree of permanence of the working relationship;
- The nature and degree of the employer’s control over the work;
- The extent to which the worker’s duties are an integral part of the employer’s business; and
- Whether the worker brings specialized skills to perform the work in connection with business-like initiative.
The proposed rule will likely result in a number of independent contractors being reclassified as employees, which would have a significant economic and administrative impact on many employers.
How:
- Submit your comments electronically at Regulations.gov.
Additional Resources:
Employee or Independent Contractor Classification Under the Fair Labor Standards Act
Who: Federal contractors and subcontractors
When: Objections due by October 19, 2022
The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has extended the deadline for objections to the release of Type 2 EEO-1 data. The request is for federal contractors’ and subcontractors’ data for the years 2016 to 2020. The deadline has been extended from September 19, 2022, to October 19, 2022.
Employers may submit their objection via the OFCCP Submitter Notice Response Portal or by email at OFCCPSubmitterResponse@dol.gov by October 19, 2022. If an employer does not submit an objection, the EEO-1 data will be disclosed in accordance with the FOIA request.
How:
- Submit your objection via the OFCCP Submitter Notice Response Portal or by email by October 19, 2022.
Additional Resources:
Who: Federal contractors that filed Type 2 Consolidated EEO-1 Reports at any time from 2016 to 2020
When: Objections due by September 19, 2022
The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) received a Freedom of Information Act (FOIA) request for all Type 2 Consolidated Employer Information Reports, Standard Form 100 (EEO-1 Report), filed by federal contractors or subcontractors from 2016 through 2020.
The OFCCP stated that it has reason to believe that the information requested is protected under FOIA Exemption 4, but has not yet determined whether this is so. Therefore, it is requesting that affected entities that have an objection to the release of their data submit the objection by September 19. Exec. Order No. 12600 §5, but has not yet made a determination. If an employer objects to the disclosure of its EEO-1 information, it is “required to submit a detailed written statement as to why the information is a trade secret or commercial or financial information that is privileged or confidential.”
The agency carefully considers timely filed objections prior to deciding whether the requested information should be disclosed or withheld. The agency may decide that disclosure is appropriate notwithstanding the objection. If so, the agency will provide the employer written notice of the reason for the decision and the date the information will be disclosed.
Employers may submit their objection by email at OFCCPSubmitterResponse@dol.gov by September 19, 2022. If an employer does not submit an objection, the EEO-1 data will be disclosed in accordance with the FOIA request.
How:
- Email your objection to OFCCPSubmitterResponse@dol.gov by September 19, 2022.
Additional Resources:
Who: Private employers with 50 or more employees
When: Effective immediately
What: On May 25, 2022, the U.S. Department of Labor (DOL) released guidance on mental health leave under the Family and Medical Leave Act (FMLA) in the form of “Fact Sheet #280: Mental Health Conditions and the FMLA” and a website for Mental Health and FMLA frequently asked questions. The guidance states that employees are entitled to FMLA leave for themselves or to care for a spouse, child, or parent for a mental health condition that qualifies as “serious health condition.”
Serious health conditions are those that require 1) inpatient care or 2) continuing treatment by a health care provider. Conditions that require continuing treatment are defined as those that:
- Incapacitate an individual for more than three consecutive days and require ongoing medical treatment (multiple appointments, or a single appointment with follow-up care); and
- Are chronic, cause occasional periods of incapacitation, and require treatment by a health care provider at least twice a year.
The Fact Sheet gives examples of when leave for mental health conditions are covered under the FMLA. The examples are related to the employee’s own mental health condition, when the employee cares for a family member under the age of 18 who has a mental health condition, and when the employee cares for a family member over the age of 18 with a mental health condition.
The fact sheet also explains that under the FMLA, serious illness or injuries for veterans include those incurred or aggravated while on duty and those “incurred or aggravated during military service but that did not manifest until after the veteran left duty,” such as depression and post-traumatic stress disorder (PTSD).
Employers are prohibited from retaliating against employees who exercise their right to take job-protected FMLA leave for mental health. Employers must keep employee medical records separate from personnel files.
How:
- Ensure your FMLA leave policies and practices comply with the law.
Additional Resources:
Who: All employers
When: Effective July 1, 2022
What: Starting July 1, 2022, the Transparency in Coverage (TiC) rules require employer-provided group health plan sponsors to disclose cost-sharing information for items and services provided by in-network and out-of-network providers. The purpose is to help insureds know what the cost of an item or service is before incurring it. The rules are being implemented in three phases, with Phase One becoming effective July 1, 2022.
In Phase One, sponsors must post-hospital pricing information publicly in two machine-readable files (MRFs). The files must be accessible to anyone, be free of charge, and be available without conditions, such as setting up login credentials. The MRFs must be updated monthly.
One MRF must contain the plan’s negotiated rates for covered items and services for all in-network providers. For each coverage option, the file must include:
- The name and identifier (e.g., HIOS);
- Each billing code (e.g., CPT), with a plain-language description of the code; and
- All applicable rates, including negotiated rates, fee schedule rates, or derived amounts.
The second MRF must contain the plan’s negotiated rates for out-of-network providers. It must disclose for each coverage option:
- The name and identifier (e.g., HIOS);
- Each billing code (e.g., CPT), with a plain-language description of the code; and
- Unique out-of-network allowed amounts for each out-of-network provider, an identifier (e.g., NPI), and billed charges for services or items during the 90-day period beginning 180 days before the publication date of the file.
When there are fewer than 20 claim payments for a particular billing code, the data should be omitted.
Insured group health plans may satisfy the disclosure requirement by entering into a written agreement with the insurance issuer that the issuer will disclose the required information. In such cases, employers are not required to disclose the information on their own site or post a link to the carrier’s disclosure website.
The TiC rules allow an insured or self-insured group health plan or insurance issuer to contract with a third-party administrator (TPA) to disclose the information. In these cases, the employer must post a link on its public website to the TPA website where the files are posted. If the TPA violates the disclosure requirements, the group health plan or issuer (whoever entered into the contract) is in violation.
How:
- Create a plan to support the machine-readable file requirements of the transparency rules.
Additional Resources:
U.S. Department of Labor FAQs About Affordable Care Act Implementation Part 53
Who: All employers with federally funded or assisted construction projects
When: Comments due by May 17, 2022
What: On March 18, 2022, the U.S. Department of Labor (DOL) published a Notice of Proposed Rulemaking related to Davis-Bacon Act regulations as they apply to wages paid to workers on federally funded or assisted construction projects. Comments on the proposed rule are due by May 17, 2022.
The Davis-Bacon Act is to ensure workers on federally funded or assisted projects are paid local prevailing wages during the contract period. If passed, the amendments would help provide higher wages to those workers. The proposed amendments would revert to a previous definition of “prevailing wage” and make various changes that would improve the DOL’s ability to administer and enforce Davis-Bacon labor standards more effectively and efficiently.
How:
- Submit comments on the proposed rule at regulations.gov by May 17, 2022.
Additional Resources:
Notice of Proposed Rule Updating the Davis-Bacon and Related Acts Regulations
Who: All employers
When: Effective immediately
What: On March 10, 2022, the U.S. Department of Labor’s Wage and Hour Division released new resources to help combat retaliation by employers against employees who exercise their right to report violations of labor laws. Those resources are:
- A Wage and Hour Anti-Retaliation website;
- A field assistance bulletin titled “Protecting Workers from Retaliation”; and
- A presentation titled “Unlawful Retaliation under the Laws Enforced by the Wage and Hour Division.”
Retaliation can take many forms: exclusion from regularly scheduled meetings, a reduction in work hours, termination, and everything in between. Fear of employer retaliation often prevents workers from reporting violations of the law, participating in an investigation, or asserting their workplace rights. The DOL published the new resources as part of their commitment to prevent retaliation and uphold worker rights.
The guidance gives specific examples of unlawful retaliation under the Fair Labor Standards Act (FLSA), the Family Medical and Leave Act (FMLA), and visa programs. Such examples include sending an employee home early without pay for attempting to exercise her right to pump breast milk at work, assigning penalty points to days missed under FMLA leave, and threatening to deport workers unless they destroy their time records.
How:
- Ensure your anti-retaliation policies and training materials are up to date.
Additional Resources:
Wage and Hour Anti-Retaliation Website
Protecting Workers from Retaliation Field Assistance Bulletin No. 2022-02 (March 10, 2022)
Unlawful Retaliation under the Laws Enforced by the Wage and Hour Division (Presentation)
Who: All employers
When: Effective immediately
What: On March 14, 2022, Judge Marcia Crone of the U.S. District Court, Eastern District of Texas, reinstated the Trump Administration’s Independent Contractor Rule that the Biden Administration had previously rescinded. The rule seeks to clarify who is and is not an independent contractor for purposes of the Fair Labor Standards Act (FLSA). The rule was originally slated to become effective on March 8, 2021. The Biden Administration delayed the effective date until May 7, 2021, and then rescinded the rule on May 6, 2021.
Overall, the rule favors the classification of workers as independent contractors. The Biden Administration stated that the rule didn’t meet the well-established, multi-factor economic realities test that the courts have been using to determine a worker’s status employee versus independent contractor.
The March 14, 2022, U.S. District Court ruling stated that the delayed implementation of the rule and the rescission of the rule violated the Administrative Procedures Act (APA). The judge said that the Biden Administration failed to give proper notice and allow for the required comment period. Therefore, the Independent Contractor Rule is reinstated and is effective as of March 8, 2021.
How:
- Monitor the U.S. Department of Labor website for published guidance and possible future withdrawal of the rule.
Additional Resources:
Department of Labor Independent Contractor Status Under the Fair Labor Standards Act
Department of Labor Fact Sheet 13: Employment Relationship Under the Fair Labor Standards Act (FLSA)
Who: All employers
When: Effective immediately
What: Effective January 15, 2022, the Department of Labor (DOL) increased the maximum civil penalties for violations to account for inflation. Penalties for certain violations of employee notice and posting requirements have increased as follows:
- $189 for failing to correctly post the Family and Medical Leave Act (FMLA) notice;
- $14,502 for failing to correctly post the Job Safety and Health: It’s the Law (Occupational Safety and Health Act) notice; and
- $23,011 for failing to correctly post the Employee Polygraph Protection Act (EPPA) notice.
Employers must post the current version of each notice, and in the correct location. Employers must ensure they are meeting the posting requirements for each poster. For example, the FMLA poster, Equal Employment Opportunity poster, and Employee Polygraph Protection Act poster must be visible to all applicants.
Note that the DOL released guidance that states a link to the posters on a company website does not negate the need to physically post notices in a conspicuous location in the workplace. Hosting the posters on a website is considered a supplementary method of communication only.
How:
- Ensure your DOL posters are up to date and posted in the correct location.
- Review your procedures to determine whether you are notifying all applicable employees and/or applicants, per the requirements for each poster.
Additional Resources:
Department of Labor Workplace Posters
Department of Labor Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2022
Who: Covered federal contractors and subcontractors
When: Effective immediately
What: Previously, the Office of Federal Contract Compliance Programs (OFCCP) did not have a way to monitor federal contractors’ compliance with the requirement that they have an affirmative action plan (AAP). To remedy that, it launched an online Contractor Portal on December 2, 2021. Contractors may begin registering for access to the portal on February 1, 2022. Beginning March 31, 2022, contractors must use the portal to certify their AAP compliance, which is due by June 30, 2022.
How:
- Review your compliance practices with regard to AAP requirements.
- Register for Contractor Portal access.
- Monitor the OFCCP website for a user guide and how-to videos.
Additional Resources:
Who: Federal government contractors
When: EO 13658 effective January 1, 2022; EO 14026 effective January 30, 2022
What: On September 15, 2021, the U.S. Department of Labor (DOL) Wage and Hour Division published Executive Order 13658, which increases the minimum wage for contract workers who perform work on or in connection with covered federal contracts. As of January 1, 2022, employers must pay contractors a minimum of $11.25 per hour, an increase from $10.95. EO 13658 also stipulates that employers must pay tipped employees who work on covered contracts a minimum of $7.90 per hour. These minimums apply to covered contracts entered into prior to January 30, 2022.
On November 22, 2021, the DOL published Executive Order 14026, a final rule titled, “Increasing the Minimum Wage for Federal Contractors.” The rule provides for an increase in the minimum wage for federal contract workers for covered contracts that are entered into, renewed, or extended on or after January 30, 2022. For those contracts, the minimum wage for federal contractors will increase to $15.00 per hour. Thereafter, the Secretary of Labor will determine the amount of the annual increase in the minimum wage for federal contractors.
How:
- Update your payroll system to reflect the new minimum wage effective January 1, 2022, and January 30, 2022, as it applies to your contract dates.
- Monitor for the release of a new Workers Rights Under Executive Order 13658: Federal Minimum wage for Contractors poster on the U.S. Department of Labor website, and post when available.
Additional Resources:
Executive Order on Increasing the Minimum Wage for Federal Contractors (April 27, 2021)
Increasing the Minimum Wage for Federal Contractors (January 30, 2022)
U.S. Department of Labor Side-by-Side Comparison of EO 13658 and EO 14026
Who: All employers
When: Effective immediately
What: The U.S. Department of Labor has redesigned and relaunched its Employer Assistance and Resource Network on Disability Inclusion (EARN) website. The new site focuses on the four basic components of the employment lifecycle—recruitment, hiring, retention, and advancement—and explains how employers meet their workplace diversity, equity, inclusion, and accessibility goals by including people with disabilities. The site offers employers many resources related to disability inclusion: checklists, online training, policy guides, and videos.
How:
- Visit the new website to explore the resources available to you.
Additional Resources:
Employer Assistance and Resource Network on Disability Inclusion (Statement of Purpose)
