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The US Department of Labor on Monday published a proposal for a new regulation governing multi-employer 401(k) plans. The proposed new rule would make it easier for small businesses to offer retirement plans to their employees by broadening the criteria under which organizations can form multi-employer plans, Employee Benefit News explains:
The arrangements are currently allowed for employers with an affiliation or connection, such as companies with a common owner or members of the same industry trade association. Under the proposed rule, MEPs could be formed by associations of employers in a city, county, state or a multistate metropolitan area, or in a particular industry nationwide, according to the DOL.
Sole proprietors, as well as their families, would be also permitted to join such plans, the DOL said. Professional employer organizations, which are human resources companies that contractually assume certain employment responsibilities for its client employers, could also sponsor plans.
The proposal comes in response to an executive order President Donald Trump signed at the end of the summer, directing his administration to remove barriers to small businesses offering retirement benefits through the multi-employer plans. Employees of smaller organizations are less likely than those at large firms to be offered employer-sponsored retirement plans.
The Wage and Hour division of the US Department of Labor announced earlier this month that it was planning a campaign of inspections and investigations targeting employers who use the H-2B seasonal guest worker visa program to hire temporary employees from other countries. Billed as an “education and enforcement initiative,” the campaign will target hotels and landscapers, the two industries that rely most heavily on the H-2B visa, “providing compliance assistance tools and information to employers and stakeholders, as well as conducting investigations of employers using this program,” according to the Labor Department’s statement:
A key component of the investigations is ensuring that employers recruit U.S. workers before applying for permission to employ temporary nonimmigrant workers. “Any employer seeking workers under this program must be ready and willing to hire qualified U.S. applicants first,” said Bryan Jarrett, Wage and Hour Division Acting Administrator. “This initiative demonstrates our commitment to safeguard American jobs, level the playing field for law-abiding employers, and protect guest workers from being paid less than they are legally owed or otherwise working under substandard conditions.”
Last year, WHD investigations found more than $105 million in back wages for more than 97,000 workers in industries with a high prevalence of H-2B workers, including the hotel industry.
The H-2B is a six-month visa that allows foreigners to work for a US employer temporarily and is most commonly used in the hospitality and landscaping industries to fill labor shortages in the high-demand summer season. In a historically tight market for American workers, employers in these industries have grown more dependent on the H-2B program to keep up with seasonal demand and grow their businesses. The policies of President Donald Trump, who has tasked his administration with reducing the number of both legal and undocumented immigrants entering the US, have exacerbated the labor market challenges of many employers who rely on guest worker visa programs like the H-1B and H-2B.
The US Department of Labor announced last week that it was making available $100 million in “Trade and Economic Transition National Dislocated Worker Grants,” which will fund training and career services programs for workers affected by “major economic dislocations.” These grants will be disbursed to states, outlying areas, local workforce development boards, and other entities, by the department’s Employment and Training Administration, and are meant to address a variety of workforce challenges, including:
- The economic and workforce impacts associated with job loss or employer/industrial reorganization due to trade or automation;
- The loss, significant decline, or major structural change/reorganization of a primary or legacy industry, such as a manufacturing downturn due to technological advances, including impacts on the agricultural industry due to trade or other economic trends;
- Other economic transition or stagnation that may disproportionately impact mature workers, putting them at risk for extended unemployment, lower wages, and underemployment.
Applications for grants are due by September 7, and the administration plans to begin awarding funds by September 30. It will continue to fund qualifying applications in the order they are received until all of the allocated funds are spent.
This is the first major initiative from the Trump administration focused on protecting the workforce from automation-related displacement. Treasury Secretary Steven Mnuchin took criticism last year when he downplayed the potential impact of automation on job loss, arguing that technological displacement would not be an issue for another 50 years or more.
The US Department of Labor has finalized a new regulation that will enable more small businesses and self-employed Americans to buy health insurance through association health plans (AHPs), which proponents say will help lower health insurance costs for smaller employers, but which critics say undercuts the essential coverage requirements created by the Affordable Care Act. The core impact of the nearly 200-page rule is to broaden the definition of the term “employer” under the Employee Retirement Income Security Act (ERISA), establishing new criteria under which employers can join together in an association that would still be regarded as a single “employer” for ERISA purposes. SHRM’s Stephen Miller discusses what that means for how small businesses buy group health insurance:
The broader interpretation of ERISA will let employers anywhere in the country that can pass a “commonality of interest” test join together to offer health care coverage to their employees. An association could show a commonality of interest among its members on the basis of geography or industry, if the members are either:
- In the same trade, industry or profession throughout the United States.
- In the same principal place of business within the same state or a common metropolitan area, even if the metro area extends across state lines.
Sole proprietors will be able to join small business health plans to provide coverage for themselves as well as their spouses and children.
Previously existing AHPs, which were allowed under a more limited set of restrictions, will not be affected, unless they choose to expand in ways allowed by the new rule. The rule change, which President Donald Trump ordered the department to study last year, effectively exempts AHPs from ACA regulations that apply only to individual and small group plans by allowing them to operate in the more lightly regulated large group market. These regulations include the core package of health care services known as essential health benefits, which all plans in the individual and small group market are required to include but larger plans are not.
US Labor Secretary Alexander Acosta (Shawn T Moore/Department of Labor/Flickr
Last month, Bloomberg BNA’s Ben Penn and Porter Wells reported that the US Department of Labor was planning to relax a policy put in place by the Obama administration to vigorously enforce regulations prohibiting gender pay discrimination by organizations that contract with the federal government. The department was said to be issuing new guidance to supplant a 2013 directive that had given the Office of Federal Contract Compliance a mandate to audit federal contractors for salary bias and make its own determinations as to whether workers were employed in identical or comparable roles for that purpose.
The OFCCP had used that directive to force substantial settlements from several large employers over alleged pay discrimination, and it has been at the center of the ongoing dispute between the Labor Department and Google over pay discrepancies the office has said indicate widespread discrimination (Google vigorously denies this and claims to have no statistically significant gender pay gap at all).
The new guidance, Penn and Wells explained, would “allow businesses to shape the random Labor Department audits by determining which workers investigators should be comparing for possible pay bias” instead. This change would be in keeping with Labor Secretary Alexander Acosta’s approach of assuming good faith on the part of businesses and allowing them to admit and correct compliance issues without fault rather than pursuing investigations and lawsuits. After these plans came to light, however, the department may be backtracking, Allen Smith reports at SHRM. Mickey Silberman, an attorney with Fortney & Scott in Denver, tells Smith that the OFCCP, Labor Department, and various stakeholders are now discussing the proposed changes.
In its latest regulatory agenda, the US Department of Labor announced its intent to issue a Notice of Proposed Rulemaking for a new overtime salary threshold sometime next January. The Trump administration had first signaled its interest in rewriting the overtime rule last July, when the Justice Department expressed that intent in a court filing and the Labor Department issued a request for comments from the public—the first step in the federal government’s rulemaking process.
A new overtime rule issued by the Obama administration in 2016 raised the salary threshold at which employees are exempt from overtime pay from $23,660 to $47,476, but was blocked from going into effect by the courts and ultimately overturned by a federal judge in Texas last September, who found that the department had erred in setting the new rules for overtime eligibility based on salaries alone and not job descriptions.
The Labor Department appealed that judgment, not because it intends to maintain the previous administration’s rule, but rather out of concern that the ruling would hinder its ability to rewrite it. Current Labor Secretary Alexander Acosta had been critical of his predecessor’s decision to raise the threshold dramatically, indicating in his confirmation hearing last year that he thought an increase was needed but that doubling it all at once would put undue stress on the economy.
Employers may have hoped for a slightly speedier regulatory process, SHRM’s Lisa Nagele-Piazza reports, but now can likely expect a final new rule within two years, giving them plenty of time to prepare for what will probably be a less onerous new standard than the Obama administration’s:
Should US employers still be rejecting candidates or firing employees for using marijuana? Maybe not, US Secretary of Labor Alexander Acosta suggested in comments to Congress this week, according to Politico’s Morning Shift:
Acosta said Tuesday that employers should rethink the practice of drug testing every job applicant, which he suggested could keep qualified people out of the workforce. Acosta’s remarks came in response to a question from Rep. Earl Blumenauer (D-Ore.) during a House Ways and Means Committee hearing. Blumenauer, who’s from a state that legalized recreational marijuana, said he’s concerned that legal pot shows up “in ways that are disqualifying” on drug tests, and asked Acosta what could be done to “unleash” those workers’ potential.
“There are sometimes valid health and safety reasons why an individual that cannot pass a drug test shouldn’t hold a certain job,” Acosta said. However, he also said some employers “make the assumption that because there’s a negative result on a test they would not be a good employee.”
Acosta was testifying in a hearing on Jobs and Opportunity: Federal Perspectives on the Jobs Gap, part of a series of hearings the committee is holding as it prepares to reauthorize the Temporary Assistance for Needy Families (TANF) program. While the secretary did not say in so many words that employers should stop drug testing their employees, he expressed the opinion that “it’s important to take a step back … and ask, are we aligning our drug policies and our drug testing policies with what’s right for the workforce?”
Blumenauer’s question to Acosta and the secretary’s less-than-categorical answer both reflect the significant degree to which employers are being forced to rethink their drug policies in light of changing attitudes toward cannabis and the growing number of jurisdictions where it has been decriminalized or legalized for either medicinal or recreational uses. Businesses have begun lobbying the Trump administration to issue guidelines on how to navigate the conflict between federal drug laws—under which marijuana is still classified as a Schedule I substance along with heroin, ecstasy, and LSD—and increasingly liberal state laws.