Paul DeCamp Quoted in "NLRB Targets Grad Student Unions in New Reg Agenda"

FMLA, Fluctuating Workweek on DOL’s Radar

The Department of Labor, meanwhile, which is usually the busiest of the labor agencies on the rulemaking front, offered updates on numerous existing regulatory initiatives in Wednesday’s updated regulatory agenda and indicated a few new issues it may soon tackle.

One is a request for information that the agency plans to put out by April 2020 about updating the rules governing the FMLA.

Although the details of the RFI were scant, the agency said it will seek public feedback on ways to “improve its regulations under the FMLA” both to “better protect and suit the needs of workers, and [to] reduce administrative and compliance burdens on employers.”

Paul DeCamp, co-chair of Epstein Becker Green’s wage-and-hour practice and a former DOL Wage and Hour Division administrator, said there are “any number of things the department could do with respect to the FMLA, as it has been a long time since the last significant updating of those regulations.”

Besides the FMLA, the DOL included in its list of long-term actions its intention to issue a proposed rule surrounding the “fluctuating workweek,” which pays workers diminishing rates for extra hours they put in when their hours vary from week to week.

The DOL’s agenda entry noted that the fluctuating workweek pay calculation method isn’t now available for employers that pay workers with bonuses or other types of incentives; the agency said it wants to update existing regulations “to grant employers greater flexibility to provide additional forms of compensation to employees whose hours vary from week to week.”

The agency didn’t indicate a date for when a proposed rule might be unveiled.

Of that potential proposal, DeCamp said he anticipates “clarification regarding when that type of payment is available.”

“There have been a number of decisions over the years, particularly at the district court level, that have created confusion regarding what is and is not required for the fluctuating workweek, as well as what types of pay arrangements can qualify,” DeCamp said.

But of the DOL’s regulatory agenda as a whole as outlined on Wednesday, DeCamp said it essentially offers a glimpse at what the agency’s priorities will be should President Donald Trump win a second term.

“At this point in the term, the regulatory agenda provides a window into what the Department of Labor may want to do in the event that there is a second term for the current administration following the 2020 elections,” DeCamp said.