DOL Regulations - Live Q&A Session with WHD - Static Version
Wednesday, April 28, 9 a.m. EDT
Please note that input received during the course of this web chat is not part of the formal rulemaking process. You can find DOL’s proposed regulations, and submit comments, by visiting www.regulations.gov.
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8:52 Moderator: Welcome! We'll begin our session at 9 a.m. EDT, but you can submit questions at any time and they will go into a queue. This is a text-only Q&A, so there will be no audio or video.
8:59 Nancy Leppink: Hello, I am Nancy Leppink, Deputy Administrator of the Wage and Hour Division. Welcome to the Web chat on the Wage and Hour Division's Spring Regulatory Agenda. Thank you all for your interest in the programs and activities of the Wage and Hour Division. I look forward to your participation in the regulatory process. Today, we will answer questions on the Wage and Hour Division's regulatory agenda and will take your suggestions on the agency's current regulatory priorities. Although the discussion today is not part of the official rulemaking process, we hope this dialogue will encourage you to submit comments you deem relevant for consideration in the record when rules are proposed and published in the Federal Register. For more information about the Wage and Hour Division, please visit our Web site, www.wagehour.dol.gov, or call the Wage and Hour Division toll-free help line at 1-866-4US-WAGE (1-866-487-9243).
9:07 Comment From Lisa Forhan: Does the agenda for the coming year include revising the Companionship Exemption for home care workers under the FLSA?
9:07 Nancy: Lisa, thanks for your question. Yes, our regulatory agenda calls for a notice of proposed rulemaking concerning workers who provide companionship services.
9:07 Comment From Steve Albanese, APWU: The WH380 is an optional form yet the employer is forcing workers to use this form. In the past any form was acceptable providing the statutory information in 825.306 was contained. will the new regs clear this up?
9:07 Nancy: Thanks, Steve, for the question. You are correct. Under the current regulations, the certification forms are optional use forms. We encourage you to submit input during the public comment period if you have suggestions about the forms.
9:07 Comment From Lisa Forhan: Glad to hear it - that's long overdue.
9:07 Comment From Haeyoung Yoon: when is WHD planning to publish the proposed rules on record-keeping?
9:08 Nancy: Thank you for your question, Haeyoung Yoon.
The publication date for this proposal is August.
9:09 Comment From Tim: Is the employer required to pay an employee at least minimum wage for travel time between clients homes?
9:09 Nancy: Hi Tim, thank you for your question. Please contact your local Wage and Hour office to discuss travel time rules. You can find this information on the Wage and Hour website at http://www.dol.gov/whd/america2.htm
9:10 Comment From Tere Bettis: What are the Wage and Hour Division's regulatory agenda top priorities?
9:12 Nancy: Thank you for your question. Our top priorities are listed in the regulatory agenda. You can find the agenda here: http://www.dol.gov/asp/regs/agenda.htm
9:12 Comment From Steve Albanese, APWU: There is clear language on the period of time that the employer has to respond to FMLA requests (5 business days) Following Ragsdale penalties for violating this notice period were all but wiped out and the employer acts with impunity. Will the new regs re-establish clear penalties so employees will receive timely notice.
9:12 Nancy: Steve, again, good question. The Wage and Hour Division is planning a rulemaking on FMLA and expects to publish a notice of proposed rulemaking in November 2010. We encourage you to submit input during the public comment period if you have suggestions about FMLA.
9:13 Comment From Bruce from NC: I am both interested and concerned about rules that would tighten enforcement around the commonly used contractor status in roles that are arguably employee roles. Lots of grey area here. I am concerned that tight enforcement that eliminates much of the grey will hurt both the contractor and employer because many/most will not want to add to headcount given the high cost of mainting another person on full payroll/benefits/other liabilities. Bottom line, in my view, most of the folks on these grey area 1009s like it that way and so do their workplaces. Are you guys concerned about upsetting the posiitve side of 1099 workers?
9:13 Nancy: Bruce, I appreciate your comment. Our regulatory agenda includes updating recordkeeping requirements. We expect this update to promote transparency and encourage greater levels of compliance by employers. We also expect the regulation to enhance awareness among workers of their status as employees or independent contractors, as well as enhance awareness of employee rights, and entitlements to minimum wage and overtime pay.
9:14 Comment From Loro: Part of the proposed regulations to increase awareness would require employers to notify employees about their rights under FLSA. Would this be a new posting or some type of mandatory training? Also, would we need to formally notify each employee of their FLSA status and how it was determined?
9:14 Nancy: Thanks Loro, this proposal is in development and we have not yet made final decisions. We encourage you to comment on the proposal when it is published.
9:15 Comment From Carol Boyer: Can you please explain the proposed change to the companion exemption?
9:15 Nancy: Thank you for your question.
See the companionship fact sheet discussing the regulatory agenda item you're asking about: http://www.dol.gov/regulations/factsheets/whd-fs-flsa-companionship.htm
9:15 Comment From MANUEL: What is the minimum wage for NYC?
9:15 WHD Tips and Resources: You can find a list of all of the state minimum wages at http://www.dol.gov/whd/minwage/america.htm .
9:15 Comment From Guest: Please describe your proposed regulations on the companionship exemption
9:15 Nancy: Guest, thank you for your question. Please see the answer to the question from Carol Bayer above.
9:15 Comment From Guest: What other areas of FMLA, besides military caregiver leave and the flight crews act regulations, might DOL issue new or revised regulations for in November 2010?
9:15 Nancy: Dear, Guest, thank you for your question. We have not yet finalized the proposal. Please monitor the Department's regulation Web site, http://www.dol.gov/regulations/, for information on publication of the proposal. We encourage you to comment on the proposal when it is published.
9:17 Comment From Haeyoung Yoon: does the agenda include revision to record-keeping requirements for domestic service employees in section 552 of CFR
9:17 Nancy: The recordkeeping requirements are still under development and no decision has been made.
We appreciate your comment on domestic employees and will take it under careful consideration.
9:18 Comment From Amy: Can you give us some insight into what the new record-keeping requirements will require?
9:18 Nancy: Amy, thanks for your question. We have a fact sheet available online that discusses our upcoming recordkeeping proposal. It is available at http://www.dol.gov/regulations/factsheets/whd-fs-flsa-recordkeeping.htm. I would encourage you to submit comments when the proposal is published. You can submit comments through http://www.regulations.gov/.
9:19 Comment From Rob: Could you elaborate on what the recordkeeping regs will address and possibly indicate how? For instance, what are the issues for telework and flexiplace arrangements.
9:19 Nancy: Rob, please see the following fact sheet on FLSA recordkeeping regulation: http://www.dol.gov/regulations/factsheets/whd-fs-flsa-recordkeeping.htm
9:19 Comment From Margaret: What is the status of DOL's proposed updates to the FLSA's child labor regulations, to reflect statutory amendments enacted in 2004, as well as to address recommendations of the National Institute for Occupational Safety and Health in its 2002 report to DOL on the child labor Hazardous Occupations Orders (RIN: 1235–AA01)?
9:19 Nancy: Thank you for your question.
As you may know, we have engaged in child labor rulemaking for some time. We hope to publish final regulations soon.
9:19 Comment From Patricia, APWU: The employer is requiring a new FMLA certification with the first absence in the new leave year. They are doing this even if the employee just submitted a certification for their condition in December of the previous leave year. Was this the intent of the 2009 changes to the FMLA regs? Will extreme circumstances like this be considered when you publish proposed rules later this year?
9:19 Nancy: Dear, Patricia, thank you for this question. The FMLA is fact specific. Please review our Web site at http://www.dol.gov/whd/ to obtain contact information for your local district office if you would like more specific guidance.
9:21 Comment From Amy: Will employers be required under the new recordkeeping requirements to inform employees of their exempt status?
9:21 Nancy: Thanks Amy thank you for your question. We have not yet finalized the proposal. Please monitor the Department's regulation Web site, http://www.dol.gov/regulations/, for information on publication of the proposal, or you could also view the Wage and Hour fact sheet at http://www.dol.gov/regulations/factsheets/whd-fs-flsa-companionship.htm . We encourage you to comment on the proposal when it is published.
9:23 Comment From Kathie: Where can I find information about rounding rules for hourly employees punching at time clock?
9:23 Nancy: Kathie, thank you for your question. Please contact your local Wage and Hour Division office to discuss your question: http://www.dol.gov/whd/america2.htm
9:24 Comment From Clermont: do you intend to exempt any industries from the FLSA classification analysis and enhanced record keeping requirements?
9:24 Nancy: Clemont, please take a look at our recordkeeping fact sheet: http://www.dol.gov/regulations/factsheets/whd-fs-flsa-recordkeeping.htm. I would encourage you to comment on our proposal when it is published. You can submit comments through http://www.regulations.gov/.
9:26 Comment From Lawrence: The recordkeeping fact sheet states, "Any employers that seek to exclude workers from the FLSA’s coverage will be required to perform a classification analysis, disclose that analysis to the worker, and retain that analysis to give to WHD enforcement personnel who might request it." Is the scope of this proposed rule limited to independent contractors or does it include every employee designated as exempt by his/her employer?
9:26 Nancy: Thank you for your question.
We're working to develop a proposal that would create greater transparency so employees know how they are classified. We encourage you to submit comments once a proposal is published.
9:26 Comment From Frank Spencer: What is DOL's position on workers compensation for an independant contract provider working under the company's Medicaid # for companion services?
9:26 Nancy: Frank, thank you for your question. Please contact your state office of Workers' Compensation programs for assistance with your question: http://www.dol.gov/whd/contacts/state_of.htm
9:29 Comment From Guest: Hello. With regards to recordkeeping requirements, the Spring Regulatory Agenda states that the DOL is considering allowing alternative methods to take the place of mandatory paper records for live-in domestic workers. Could you perhaps provide more information as to what such alternative records could look like?
9:29 Nancy: Thanks for this question. We are working to develop a proposal that will address the recordkeeping on live-in domestic employees and industrial homeworkers. We encourage you to look for our proposed rulemaking and comment on the specifics when it is published.
9:29 Comment From Patricia, APWU: Under current regs a person with a lifelong chronic condition is required to submit certifcation of the condition every 6 months. Employees used to be able to do this on an annual basis. Will the new regs
9:29 Nancy: Patricia, I think I understand your question. We are working on the Family Medical Leave Act proposed rulemaking scheduled to be published in November. I encourage you to provide your input during the public comment period. You can participate at http://www.regulations.gov/.
9:29 Comment From Frank: RE: Margaret's question on child labor (9:19) , is there still an open comment period? Were can I find the most recent draft rule? Thanks
9:29 Nancy: Thanks Frank, the comment period for the child labor regulation is closed. The final regulation is now at the Office of Management and Budget for review.
9:30 Comment From Scott: Has WHD considered the costs of changing the companionship exemption to federal, state and local funders of home care services? What is the impact of the new health care reform legislation on this issue?
9:30 Nancy: Thank you for your question.
The compansionship proposal is under development and like every regulation, costs of compliance is one of the considerations. We encourage your comments on any proposal particularly on costs.
9:31 Comment From Susan: I work in the field of Developmental Disabilities and we provide care in group homes. Is there any proposal that group homes will fall under the caregiver rules?
9:31 Nancy: Susan, thank you for your question. We are working on developing the proposed rule. Please monitor the Department's regulation Web site: http://www.dol.gov/regulations/ for information on the companionship proposed rule. We encourage you to submit comments on the proposal.
9:34 Comment From Ceci: Ms. Leppink, I would like to propose to add definition to FMLA for employees who request FMLA to have medical procedures in a foreing country, or would like to travel to obtain second opinion. Thanks
9:34 Nancy: Thank you for your question.
Input received during the course of this web chat is not part of a formal rulemaking process. We encourage you to monitor www.regulations.gov and submit comments once the proposal has been published.
9:34 Comment From Jenny: Does Wage/Hour plan on any changes to regulations related to Migrant Seasonal Farmworkers?
9:34 Nancy: Thanks Jenny, the Wage and Hour Division does not currently have any regulatory changes on the Regulatory Agenda to the Migrant and Seasonal Agricultural Worker Protection Act.
9:38 Comment From Mike (via e-mail): While on the surface, it might appear eliminating the exemption would be good for employees, it actually will reduce the hours many Caregivers will be able to work. Agencies will not absorb overtime. Also care recipients, who crave consistency, will receive less of what they want. Lastly, if they leave the exemption for private hire they will steer people in that direction to save money but this is where there is less supervision and back ground checks of any sort are not required. Why do you value raising the cost of care more than the desires of care recipients and increasing the likelihood of elder abuse by promoting private hire over supervising agencies? History also shows that the IRS will loose revenue to lack of reporting of income from direct hires.
9:38 Nancy: Mike, thank you for your comments. We are working on developing the proposed rule. Please monitor the Department's regulation Web site: http://www.dol.gov/regulations/ for information on the companionship proposed rule. We encourage you to submit comments on the proposal.
9:39 Comment From Scott: Is August also the proposed timing for the proposed rules on companionship? Please describe those rules.
9:39 Nancy: Scott, we expect the companionship notice of proposed rulemaking to occur in October 2011.
In the proposed rule, we intend to consider whether the scope of the companionship exemption as currently defined in the regulations continues to be appropriate in light of substantial changes in the home care industry over the last 35 years. For more information, please see our companionship fact sheet: http://www.dol.gov/regulations/factsheets/whd-fs-flsa-companionship.htm.
9:40 Comment From Amy: The fact sheet mentions delineating burdens of proof regarding establishing that an employer has violated the recordkeeping requirements. Can you share what the proposed burdens of proof might be?
9:40 Nancy: Amy, I appreciate your question; however, the purpose of this Web chat/discussion is to highlight WHD's regulatory priorities, and get your input. We are in the process of developing the rule and we have not yet determined exactly what will be proposed. We encourage you to comment when the proposal is published.
9:41 Comment From Kay: What information will be required for notices provided to Independent Contractors?
9:41 Nancy: Kay, thank you for your question. We are working on developing the proposed rule that will provide greater transparency to workers regarding their employment status. Please monitor the Department's regulation Web site: http://www.dol.gov/regulations/ for information on the recordkeeping proposed rule. We encourage you to submit comments on the proposal.
9:41 Comment From Wm Hoffman, FMLA News: Is DOL still on schedule to deliver the new FMLA reg proposal by November 2010, or could that release be delayed? If so, why?
9:41 Nancy: Thank you for your question.
The Wage and Hour Division intends to publish a Notice of Proposed Rulemaking under FMLA in November 2010.
9:42 Comment From judy: When are these final proposals expected to come out?
9:42 Nancy: Thanks Judy, please see http://www.dol.gov/asp/regs/agenda.htm for a listing of the date we expect Final Rules to be published.
In a number of the regulations we must first go through a notice and comment period.
9:43 Comment From Rob: Is the current agenda typical or is it more ambitious than prior years?
9:43 Nancy: Rob, thank you for your question. While we cannot compare this agenda with previous ones, we do intend to vigorously pursue those regulatory changes that can best protect workers. We believe our regulatory agenda will advance the Secretary's goal of good jobs for everyone. We seek to advance openness and transparency, and help prevent violations before they occur.
9:47 Comment From Guest: The regulations are proposing that the employer disclose classification analysis, and retain that analysis to give to WHD enforcement personnel who might request it. Classification analysis is generally conducted on a position-by-position basis, when an incumbent leaves a position and a new hire occurs, what will the obligation be to re-analyze the position when the position is filled with a new hire? Also, what are the proposed retention requirements for classification analysis in light of the Lilly Ledbetter Act and this proposal. Tell me more about the notification requirements about the disclosure of the classification analysis and the burdens that this will place on the employer.
9:47 Nancy: Guest, thank you for your question. We appreciate your comments. We are working on developing the proposed rule that will provide greater transparency to workers regarding their employment status. Please monitor the Department's regulation Web site: http://www.dol.gov/regulations/ for information on the FLSA recordkeeping proposed rule. We encourage you to submit comments on the proposal.
9:48 Comment From Rob: When did you first announce that you'd be pursuing new rules on recordkeeping and when do believe the proposal will be published, and is there a goal/date for finalization?
9:48 Nancy: Thank you for your question.
The recordkeeping proposal first appeared in our Fall 2009 regulatory agenda. Our time table calls for us to publish a proposed rule in August.
9:49 Comment From Carol Boyer: what is the process for making proposed changes and what kind of timeframe is usual?
9:49 Comment From Guest: Why is the NPRM action date so far away for the companionship exemption (Oct 2011)?
9:49 Nancy: Carol and Guest, you can find lots of information about the rulemaking and regulations process at http://www.dol.gov/asp/regs/rulemaking.htm. This page: http://www.dol.gov/dol/regs/guidelines.htm also provides a helpful guide to the process.
9:54 Comment From Guest: I thought this chat would be a great opportunity to gain some insight into what could be expected from upcoming regulations. Instead, all that seems to have been accomplished is a redirect of the participants to information already existing on the DOL site. It seems like this could have been a great opportunity for the DOL. I was thrilled to see how detailed the new site regarding the regulations is and thought the chat would prove equally insightful. Instead, I leave feeling frustrated. I already read your fact-sheets – was looking for more information.
9:54 Nancy: Guest, thank you for participating in the chat, and for your comments. These rules are under development, so we have not yet determined exactly what will be proposed. We want to inform the public about our new upcoming proposals and help direct you to the best resources we have on these proposals -- and encourage you to participate in the public comment process when the proposals are published.
9:56 Comment From bob stewart: What type of notice does WHD contemplate giving to workers so that they can determine whether they are being misclassified as independent contractors?
9:56 Nancy: Thank you for your question, Bob. The department is considering a proposal that will require employers seeking to exclude workers from FLSA's coverage to perform a classification analysis and to disclose that analysis to the worker.
9:56 Comment From Patricia, APWU: What power do the District offices have to intervene or enforce the Law when people complain to them about potential FMLA violations?
9:57 Nancy: Patricia, thank you for this question. Section 107 of the FMLA (http://www.dol.gov/whd/fmla/fmlaAmended.htm#SEC_107_ENFORCEMENT) gives the Department the authority to receive, investigate, and attempt to resolve complaints of FMLA violations. When an individual believes that their rights under FMLA have been violated, they may contact a local District office (http://www.dol.gov/whd/america2.htm) for assistance.
9:58 Comment From Guest: I agree with Guest @ 9:54
9:58 Comment From Kathie: I really like the way this chat was organized. I could read the information I was interested and overlook the information I was not concerned with. The format alowed me to get work done in between. Thanks for having it.
9:58 Comment From Patricia, APWU: Can you explain the process for requesting an opinion/interpretation from the Wage and Hour Administrator on FMLA issues. How long does the process take?
9:58 Nancy: Patricia, thank you for your question. Please visit our Web site at http://www.dol.gov/whd/opinion/opinion.htm for specific information on the guidance process.
9:58 Comment From Laura: The spring regulatory agenda item related to recordkeeping requirements (Sequence 467) and the DOL Factsheet on the same subject seem to emphasize changes to recordkeeping of hours worked. Is the DOL considering including changes to recordkeeping associated with employer credits for things like lodging and meals within this proposal?
9:58 Nancy: Laura, good question. We are considering what information employers ought to disclose information regarding wage computations. We encourage you to visit http://www.regulations.gov/ and comment on our proposal when it is published this August.
9:58 Nancy: This has been a wonderful chat, and I want to thank you one last time for your interest and participation today. I'm sorry that we don't have more time. As the Wage and Hour Division moves through the regulatory process, I strongly encourage you to submit comments and recommendations on the proposed rules that are published that you believe would improve the regulations. The Department of Labor publishes proposed regulations in the Federal Register and also makes them available through the www.regulations.gov Web site. You may submit official written comments about a proposed rule by sending them either to the mailing address shown in the notice of proposed rulemaking or through the Regulations.gov Web site. This is your opportunity to shape the future of tomorrow's workplace.
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