Omnibus Spending Bill Noteworthy for What It Does Not Include

March 23, 2018

Efforts to include language in the omnibus spending bill to resolve the joint employer issue fell short as the NLRB moved to resolve one of the most controversial cases involving the issue.  The appropriations bill also did not include: funding to reduce premiums in the ACA’s individual market, employer-sought language to update and improve health saving accounts, or a resolution of the DACA issue.  Provisions in the omnibus bill noteworthy to employers include:
  • A compromise regarding the Fair Labor Standards Act (FLSA) tip credit that reverses an Obama-era regulation (which had significantly restricted tip pools) and adds a provision to the FLSA that explicitly prohibits employers from keeping any tips received from employees; and 
  • Language allowing the Trump Administration to double the number of H-2B seasonal, nonagricultural worker visas in 2018 from 66,000 to 132,000.
Separately, McDonald’s reached a proposed settlement with the NLRB that does not include a determination that the company is a joint employer of its franchise employees.  However, lawyers for the workers at the company’s franchised locations have objected to the settlement, and they were granted an April 5 hearing by an administrative law judge on whether the agreements are an appropriate way to resolve the unfair labor practice case.  Even with a settlement in this highly visible case, the Obama-era Board interpretation of "joint employer" still stands, with legislation serving as the best course for a correction.