Department of Labor continues to alter Obama-era initiatives

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There are ongoing indications that the Department of Labor under the Trump administration will continue to roll back Obama-era initiatives. The latest pertains to the controversial Union Persuader rule that we reported on last year. That new rule would have required employers to disclose information regarding their retention of consultants and attorneys to persuade employees to not unionize. The proposed Union Persuader rule never took effect and its enforcement was delayed while it was challenged in the courts and enjoined nationwide late last year. Now, the Department of Labor has published a Notice of Proposed Rulemaking that proposes to rescind this rule. The Department of Labor also withdrew the informal guidance it previously issued in 2015 and 2016 on independent contractors and joint employment.

In addition, last month the Wage and Hour Division of the Department of Labor announced that it will resume its previous longstanding practice of issuing Opinion Letters to employers who placed inquiries for guidance on the application of federal wage/hour laws in particular situations. In 2010, the Department of Labor under President Obama had stopped the practice of issuing opinion letters and instead opted to issue Administrator Interpretations, which were broader pronouncements of the application of federal wage/hours laws. In contrast, the Opinion Letters are more limited to the specific factual scenarios presented in the employer inquiries. We will continue to monitor and update you on notable federal and state enforcement agency activity.