What You Need to Know About the Shutdown(1)

(Congress, Dept of Labor, OSHA, IRS, Regulation) Permanent link

The partial federal government shut down officially began on at 12:00 p.m. midnight on December 22. More than 800,000 workers have been furloughed nationwide. While some operations like national security are deemed necessities, nine of fifteen regulatory agencies are closed until further notice.

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DOL Plans on Tip Pools, Overtime, and OSHA Recordkeeping

(Dept of Labor, OSHA) Permanent link

The Department of Labor (DOL) issued its fall regulatory agenda and there are several items of interest to the club industry

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Department of Labor Launches H-2B Compliance Initiative for Hotel & Landscape Industries

(Dept of Labor, Immigration, Regulation) Permanent link

In September, the US Department of Labor's Wage and Hour Division (DOL) announced two nationwide initiatives to strengthen compliance with the labor provisions of the H-2B temporary visa program.  

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DOL Schedules Listening Sessions on Overtime Rule

(Dept of Labor) Permanent link

The US Department of Labor’s Wage and Hour Division has announced that in the upcoming weeks, it will hold public listening sessions to gather views on the Overtime Rule. The Department plans to update the Overtime Rule, and is interested in hearing the views and ideas of participants on possible revisions to the regulations.

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The End of the Road for DOL’s Persuader Rule

(Dept of Labor) Permanent link

Persuader Rule End


The Department of Labor (DOL) has officially rescinded the 2016 Persuader Rule. The Persuader Rule would have required full public disclosure on the use of labor relations consultants by employers. In short, the rule required employers and their hired consultants to report when the consultants directly persuade workers or when the consultants participate in four indirect categories in relation to labor organization or disputes. The Persuader rule was first introduced in 2011, but has been on hold since 2014. Read more... (Log in required)

DOL Withdraws Independent Contractor Guidance

(Dept of Labor) Permanent link

On Wednesday, June 7, Department of Labor (DOL) Secretary Alexander Acosta announced the withdrawal of the independent contractor guidance first issued in July 2015. 

The July 2015 guidance offered an expanded application of the multi-factor “economic realities” test, specifically focusing on the individual worker’s economic dependence on the employer. 

1.    Is the work an integral part of the employer’s business?
2.    Does the worker’s managerial skill affect the worker’s opportunity for profit or loss?
3.    How does the worker’s relative investment compare to the employer’s investment?
4.    Does the work performed require special skill and initiative?
5.    Is the relationship between the worker and the employer permanent or indefinite?
6.    What is the nature and degree of the employer’s control?

The withdrawal does not negate an employer’s responsibilities under the Fair Labor Standards Act but instead demonstrates the Trump Administration’s commitment to rescinding onerous regulations and changing interpretation. It is yet to be seen but it may be the start in a shift in the Administration’s enforcement priorities including the joint misclassification initiative with 37 states and the Internal Revenue Service. 

For clubs who made changes to existing employee/independent contractor relationships since July 2015, it is best to review these agreements annually in concert with legal counsel to ensure they meet all applicable local, state and federal law. 

DOL Moves to Rescind Persuader Rule

(Dept of Labor) Permanent link

As expected, Department of Labor (DOL) Secretary Alexander Acosta has taken steps to officially rescind the Persuader rule. This is the latest in the Trump administration’s ongoing efforts to roll back regulations on employers.

The Persuader Rule was released by the Department of Labor in March 2016 and requires full public disclosure on the use of labor relations consultants by employers. In short, the rule requires employers and their hired consultants to report when the consultants directly persuade workers or when the consultants participate in four “indirect” categories in relation to labor organization or disputes. The Persuader rule was first introduced in 2011, but has been on hold since 2014. 

The reporting requirements were slated to become effective July 1, 2016 but a preliminary nationwide injunction stopped it as of June 27. In November 2016, the US District Court for the Northern District of Texas struck down the rule citing irreparable harm that the rule would pose to the tenets of attorney-client privilege between an employer and their legal counsel and prevent employers from receiving effective representation by legal counsel.  

The good news for clubs is that this rule was never effective or enforceable.