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Opinion: Trump administration makes pro-business moves

Industry Insight

Posted online

The Donald Trump administration has been busy implementing pro-business initiatives. New opinion letters for the Fair Labor Standards Act and Family and Medical Leave Act provide valuable defenses to businesses facing wage and hour or employee leave claims, investigations and lawsuits.

The Office of Federal Contract Compliance Programs has issued three new directives, enabling contractors to better pass compliance investigations, win compensation-related lawsuits and receive recognition for compliance efforts. The “persuader rule” was recently rescinded, so corporations no longer have to reveal advice on opposition to union efforts. As well, new Occupational Health and Safety Administration publications have been released.

Here’s a breakdown of those matters:

Labor opinion letters
A recent FLSA opinion letter specified an organization does not have to pay a worker for time spent voluntarily partaking in particular wellness activities, biometric screenings and benefits fairs. These activities may be during or outside of regular working hours. Wellness activities include participating in Weight Watchers, voluntarily taking part in a fitness activity, attending in-person health education classes and lectures, engaging in a company-facilitated gym class or utilizing an employer-provided gym. Another is joining telephonic and online health education classes from enterprise vendors.

A recent FMLA opinion letter stated a healthy laborer, who decided to donate an organ to better another person’s health, will likely qualify as a serious health condition under the FMLA, and another addressed common no-fault attendance policies. These procedures specify an associate’s employment ends if he has a certain number of occurrences in a particular time period. Furthermore, an occurrence falls off and is not counted after a stipulated period of time, such as 12 months following the occurrence. The opinion letter noted the extent of FMLA leave does not need to be considered as part of the time required for an occurrence to fall off, as long as the business used this rule on a nondiscriminatory basis.

Federal contract compliance
Directive 307 and its Barack Obama-era procedures for assessing contractor compensation practices has been rescinded. It was extensively criticized due to practices contrary to well-established Title VII law pertaining to proper analysis of compensation. A new directive replaces it and mandates consistency and efficiency of compensation analysis during compliance evaluations.

The federal contract compliance office also must clarify and give additional transparency to contractors about its approach to compensation evaluations. Clarity also must be offered to contractors that desire to perform pay equity self-analysis.

The new directive will result in the ability of contractors to predict the federal office’s compensation evaluation approach and address any possible disparities before a compliance evaluation begins.

Contractors also will have an affirmative action defense and higher probability of success against claims under Title VII, the Equal Pay Act and state and local pay equity laws.

A second directive creates a program allowing the federal office to review contractor compliance in developing an affirmative action plan within 120 days of the start of a contract, as well as maintaining and updating the plan on an annual basis.

The third directive launches a contractor recognition program to encourage proactive compliance and contractor best-of-model initiatives and practices.

Labor-management and safety
A final rule was issued rescinding the “persuader rule,” a controversial Obama-era regulation mandating organizations to reveal advice obtained regarding opposition to union efforts. The rule had changed the Department of Labor’s long-standing interpretation of the Labor-Management Reporting and Disclosure Act.

Lastly, OSHA recently released three new publications for safety professionals and managers. The publications provide direction on what to look for during worksite safety check walk-arounds.

Lynne Haggerman holds a master’s in industrial organizational psychology and is president/owner of Lynne Haggerman & Associates LLC, a Springfield firm specializing in management training, retained search, outplacement and human resource consulting. She can be reached at lynne@lynnehaggerman.com.

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