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OMB/OIRA overtime rule meetings continue:

Monday, May 9, 2016   (0 Comments)
Posted by: Marci Myer
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A Message From the National Association of Wholesaler-Distributors 


As we reported last week, the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA) is reviewing the Department of Labor’s (DoL) proposed overtime rule – the final step in the rulemaking process.  OIRA began holding meetings on the rule with stakeholders at the end of March, and those meetings continue.  Because the rule submitted to OMB by DoL is confidential, the officials participating in these meetings do not provide any information – or even any clues – as to what is in the rule or what – if any – changes they might recommend.  

We do know – or at least it’s been reported – that the salary threshold in the proposed rule DoL submitted to OMB was reduced to $47,000 from the original $50,400 proposal.  Based on what we have heard from NAW member companies, that slight change will do very little to mitigate the harm that the new rule will cause.  

As we’ve noted before, all meetings held with OIRA officials become part of the public record.  According to that public listing, OIRA has conducted 35 meetings on the overtime rule, and we know that number is low because we know of meetings that have not yet been posted.  If you are interested in seeing the list of meetings, you can access it here: 

The AFL-CIO, the left-wing Public Interest Research Group, and two environmental groups held meetings presumably supporting the rule, but the overwhelming majority of the three-dozen meetings were with groups opposed to the proposed rule.  The majority of those meetings were with businesses and employer groups, as you would expect – four NAW member company executives met with OMB/OIRA on April 22nd – but a significant number of meetings were conducted with higher education and non-profit groups. 

While we are operating in an information vacuum, we are hopeful that these non-traditional allies were effective in persuading OMB that the proposed rule will cause harm to a broad cross section of employers and employees.

Next steps on the overtime rule:

The most recent OIRA meeting included on the public list took place on May 3rd, and we believe the last meeting scheduled by OIRA/OMB is Thursday, May 12th.  We know that they declined a request for a meeting on May 17th.  Given that schedule, and the fact that final rules can be announced within a few days of final OMB approval, a final rule could be released as early the beginning of next week –possibly as early as Friday but that seems unlikely.

While the rule is likely to be released shortly, there is still time to try to influence the outcome. 

The Partnership to Protect Workplace Opportunity – the coalition that NAW helps manage that coordinates the opposition to the overtime rule – has been aggressively lobbying on behalf of legislation that would require DoL to withdraw the rule and conduct more thorough studies on its economic impact. 

As part of the concerted effort to block or change the rule, PPWO initiated a communications plan that includes a strong social media component with a very well-done video describing the harm that the rule will impose on non-profits, higher education and local businesses.

We encourage you to help with this communications effort by sharing the video on your own social media channels, including Twitter, Facebook, LinkedIn, etc.  A Bitly link to the video is here:

The Congressional Review Act (CRA) is speeding up this and other regulations in the pipeline:

Under the CRA, Congress can pass legislation to reverse specific regulations provided that the CRA resolution is introduced within 60 legislative days (not calendar days) of Congress being notified of a final new regulation.  A CRA resolution is not subject to a Senate filibuster, so can be passed by a simple 51 vote majority.  A successfully-passed CRA resolution must then be signed by the president or his/her veto overridden. 

The possibility of Congress passing CRA resolutions to block new regulations is driving the Obama Administration to move quickly to finalize its proposed rules.  In order to ensure that any CRA passed by Congress would end up on President Obama’s desk for a veto, not on the desk of the next President who might sign it, new regulations must be finalized and sent to Congress by sometime in mid-to-late May.  The Administration’s concern is legitimate – there has only been one successful CRA, and that was passed in the last months of the Clinton Administration to block his ergonomics regulation, and signed into law the next year by President Bush.

A recent article in Politico Newspaper provides a good quick summary of the CRA and the workplace regulations which are being pushed to completion to avoid a CRA challenge; that article is pasted below.

As always, thanks for your efforts on the overtime and other regulations, and we will let you know as soon as we learn anything about the content of the final rule and/or the timing of its release.



Regulations galore


By Brian Mahoney and Marianne LeVine

05/05/16 10:00 AM EDT


REGULATIONS GALORE: The Labor Department is rushing to finalize a number of regulations before mid-May, after which (according to a rough bipartisan calculation) any major rule released in final form risks getting blocked under the Congressional Review Act should Donald Trump be elected president. (Hey, it’s happened. President George W. Bush did it to Bill Clinton’s OSHA rule on ergonomics.)

Here’s a rundown of the most significant rulemakings:


OVERTIME: The Labor Department is expected to release its final overtime rule late next week. Morning Shift recently reported that the agency lowered the salary threshold under which virtually all workers are guaranteed time-and-a-half pay to $47,000 from the proposed $50,440. (The current salary threshold is $23,660, so that’s still a big hike.) The proposed rule would index the salary threshold thereafter to either the 40th percentile or to the Consumer Price Index for all urban consumers.


— OSHA’S RECORDKEEPING RULE: Last week, the White House Office of Management and Budget completed its review of a final OSHA rule that clarifies that employers must record work-related injuries and illnesses, even if they did not comply with OSHA’s recordkeeping requirement at the time of the illness or injury. The proposal did not include new compliance or recordkeeping requirements for employers.


— FAIR PAY AND SAFE WORKPLACES: The Labor Department on Wednesday forwarded a final rule implementing President Barack Obama’s executive order requiring prospective federal contractors to disclose prior labor violations in the procurement process. This one’s not expected immediately but Morning Shift readers should be on the lookout, especially given that the House Armed Services Committee last week included an amendment to the National Defense Authorization Act that would exempt defense contractors from the executive order. According to a 2015 report from the National Contract Management Association and Bloomberg Government, the Defense Department accounted for two-thirds of all federal contracts in 2014.  [Note:  this is the so-called “Blacklisting” Rule]




— TREASURY DECISION ON TEAMSTERS CENTRAL STATES FUND: The Treasury Department has until Saturday to decide whether to approve an application from the Teamsters Central States Fund to cut vested benefits under 2014 legislation. The Fund filed its application in September, taking advantage of the 2014 Kline-Miller law, which allowed the cuts. Some are skeptical the Treasury Department will approve the plan because the agency subsequently put out a rule that changed some of the requirements for making actuarial assumptions. It’s not clear that Central States’ application would comply with the terms of that new rule.


— EEOC WELLNESS REGS: The Equal Employment Opportunity Commission is expected to release two regulations soon clarifying when an employee wellness program is considered “voluntary” under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. The regulations are intended to provide more consistency with the Affordable Care Act, which says the “incentive” for participating in a wellness program may not exceed 30 percent of the cost of a group health plan.


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