FortneyScott Client Alert: Trump Administration Rushes to Finish -
OFCCP Unveils Promotions, Accommodations Landing Pages,
DOL Issues Final Tip-pooling Rule
On Tuesday, December 22, OFCCP unveiled its latest focused review landing pages for promotions and accommodations. The agency has submitted proposed scheduling letters for these new focused reviews to OMB for approval. Those proposed scheduling letters would require federal contractors to submit employment activity and employee compensation data which is currently not required for Section 503 and VEVRAA focused reviews. OFCCP had originally sought both employment activity and employee compensation for Section 503 and VEVRAA focused reviews but the final letters eliminated those requirements. Otherwise, these letters appear to have only minor working changes.
 
OFCCP on December 23 published its proposed construction scheduling letter in the Federal Register. Federal contractors have until February 22, 2021, to comment on the proposed letter.

The Department of Labor announced its final tip-pooling rule on December 22. The rule reverses the tip-pooling rule issued by the Obama Administration which limited tip-pooling to wait staff. In 2017, the DOL issued a controversial revision of the rule which the DOL’s IG recently found “did not demonstrate” the agency “followed a sound process” in proposing the rule. The new rule which will become final 60 days after being published in the Federal Register permits employers to classify more employees as tipped employees allowing them to be paid the lower minimum wage of $2.13. The rule reverses the Obama rule that tipped employees who spent 20 percent of their time on non-tipped tasks be paid full minimum wage of $7.25 for that time. The rule also codified the requirement that employers including supervisors and managers not share in tip-pooling. 

Finally, the rule would allow employers to establish a “nontraditional” tip pool for cooks, dishwashers, and other employees if the employer pays its tipped employees standard minimum wage. 

In addition to private legal challenges to this rule, the Biden Administration is expected to try to reverse many of the “midnight” regulations issued by the Trump Administration.
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This update is for general information purposes only and is not intended to provide legal counsel or advice. Employers should retain experienced legal counsel to obtain advice about the effects of these developments on their particular circumstances.