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BPAA Biweekly Federal Policy Updates - May 31, 2019

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TAX

  • Bloomberg Government reports - Congress May Need to Put Tax Extenders Ahead of Tax Law Fixes: Congress will likely have to address expired tax breaks before they can fix errors in the 2017 tax law, a staffer on the House Ways and Means Committee said. “I think we need to get through, probably, processing or considering what to do with an extenders package before we get to a technical corrections package,” said Beth Bell, Democratic tax counsel for Ways and Means. A lot of Ways and Means members remain interested in technical fixes, including addressing the “retail glitch,” Bell said. That error in the 2017 law prevents restaurants and retailers from immediately writing off the costs of interior improvements. The process of making technical corrections is hampered because the law was a partisan product, said Tiffany Smith, chief tax counsel for Democrats on the Senate Finance Committee. Smith and Bell spoke at Washington conference hosted by the Federal Bar Association May 30. The tax-writing committees are exploring what to do with temporary tax breaks, known as extenders, many of which expired at the end of 2017. Senate Finance has formed a task force to examine the provisions.

 

MINIMUM WAGE UPDATE

  • Bloomberg Government reports - $15 Minimum Wage Becomes Part of 2020 Presidential Landscape: From liberal firebrands Bernie Sanders and Elizabeth Warren to moderates Joe Biden and John Hickenlooper, nearly the entire 2020 Democratic presidential field agrees that the federal minimum wage should be more than doubled, to $15 an hour. That near-unanimity reflects the success of an unorthodox campaign by the Service Employees International Union called the Fight for 15. It launched in 2012 to help nonunion McDonald's workers who walked off their jobs as cooks and servers agitate for a then-unthinkable $15 minimum wage. Now, according to the National Employment Law Project, one-third of the country will have a $15 minimum wage as gradual increases in bedrock Democratic states like California, Illinois and New York kick in over the coming years. Ernie Tedeschi, an analyst at Evercore ISI, calculated the de facto national minimum wage at a historic high of $12 an hour when accounting for a flurry of recent city and statewide increases . Officially, the federal minimum wage is still $7.25 an hour. Other than the sudden jump on wages and its hold in the Democratic primary, the Fight for 15 is also showcasing a different form of labor organizing as traditional union membership has dwindled. "The labor movement is reinventing themselves as a new civil rights movement by helping workers in ways beyond collective bargaining," said Gary Chaison, an industrial relations professor at Clark University in Massachusetts. "This may be the last national political contest for the unions. A loss means the loss of relevancy as a workplace voice, and a win means a new purpose for the unions, outside of collective bargaining." Still, unions also need dues-paying members, and the movement is redoubling its efforts this week to pressure McDonald's into letting its workers unionize. Democratic presidential aspirants like New Jersey Sen. Cory Booker, former Housing and Urban Development Secretary Julian Castro and Washington Gov. Jay Inslee will join workers on picket lines this week, and Sanders will host a video town hall with employees of the fast-food giant who will protest outside the company's board meeting in Dallas on Thursday.

 

  • Bloomberg Government reports - DOL Silent on Highly Anticipated Wage Rules Timing: The Labor Department isn’t saying publicly when it expects to finalize three high-priority regulations that the White House and businesses want issued well before the 2020 election. The department punted on a timeline for regulations to update overtime pay requirements and limit shared liability for wage and hour violations in its spring regulatory agenda. That’s traditionally the forum for executive branch agencies to deliver their best guesses of the next year’s rulemaking calendar. The uncertainty means businesses and worker advocates planning to comply or possibly challenge the trio of recently proposed regulations will have to wait and see when the rules are made final.
    • The overtime rule proposes increasing to $35,000 the salary threshold under which workers are automatically eligible for time-and-a-half pay. That would make about 1 million workers newly eligible for overtime, according to the department.
    • Separate rules would also narrow “joint employer” liability for minimum wage and overtime violations involving franchises, staffing firms, and other related businesses, and update the definition of “regular rates” of pay for calculating overtime wages.
    • Some business groups and Republicans have said these rules are their top DOL priorities for the remainder of the administration. Democrats and worker rights organizations are also preparing to sue to halt at least some of the regulations once they are finalized.
    • Agencies often list an anticipated release month for pending regulations in the semiannual regulatory calendar.
    • Although Cabinet agencies frequently miss regulatory agenda deadlines, the Labor Department now faces more pressure to ensure timely delivery of several final rules. That’s because those rules could be repealed if they are issued late in 2020 and a Democrat takes control of the White House the following year.

 

  • Bloomberg Government reports - Challenge to Trump Overtime Rule Mulled by Democratic State AGs: The top attorneys in 15 states are considering going to court to challenge a Trump administration move to expand overtime pay requirements that they say doesn’t go far enough. Democratic attorneys general in New York, Pennsylvania, California, and other states May 21 urged the Labor Department to rethink a proposal expected to make 1 million workers newly eligible for overtime pay. They want the DOL to instead fight to save an Obama-era regulation that was blocked in court by a separate group of states. The Obama rule would have made 4 million workers newly eligible for time-and-a-half overtime wages.
    • “It is absolutely on the table,” Minnesota Attorney General Keith Ellison told Bloomberg Law of a possible lawsuit to challenge the rule. “The Department of Labor is no friend of labor, and therefore, the attorneys general are going to have to be.”
    • The elected legal officials, in response to the department’s request for public comments on the proposal, argue in the letter that the department hasn’t done enough under the Administrative Procedure Act to justify abandoning the Obama rule. A court battle could stall the administration’s plan to have the rule in place before the end of President Donald Trump’s first term in office.
    • “The reason you put that APA stuff in the comment letter is to tee up a potential legal challenge down the road,” a lawyer inside one attorney general’s office told Bloomberg Law. The lawyer spoke on condition of anonymity to discuss plans that haven’t been finalized.
    • A group of 21 states, led by Nevada and Texas, convinced a federal judge in 2017 to block the Obama overtime rule. They argued that the proposal—which would have raised the salary threshold under which workers are automatically eligible for overtime pay to $48,000 from $23,500—would have forced states to cut government jobs to afford new overtime costs for public workers. The lawsuit was eventually combined with a similar complaint by the U.S. Chamber of Commerce and trade groups, which said the rule would cause private payrolls to skyrocket.

 

  • Tip Regulations Under the Fair Labor Standards Act (FLSA): In the FY 2018 Consolidated Appropriations Act, Congress amended multiple provisions of the Fair Labor Standards Act with respect to an employer's use of its employees tips and additionally provided that portions of the Department's 2011 rule regarding tips shall have no further force or effect until any future action taken by the Department.  In this Notice of Proposed Rulemaking, the Department will align its regulations with the recent statutory changes. Read the full rule on Reginfo.gov.

 

  • Politico reports - Molly Conway will replace Nick Geale effective June 1 as chief of staff to Labor Secretary Alexander Acosta: White House officials directed Acosta to fire Geale after complaints about Geale's management style (which, two former Trump administration officials last week told POLITICO's Ian Kullgren , included frequent profanity-laced tirades and belittling of subordinates) prompted an investigation by the Office of Management and Budget. The White House also blamed Geale in part for the slow pace of deregulation at DOL. Conway was previously deputy chief of staff at DOL, a post she's held since May 2017.
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