Policy Week in Review – January 9, 2026

NLRB Has a Quorum!

On January 7, Senate-confirmed National Labor Relations Board (NLRB) nominees James Murphy and Scott Mayer were sworn in as new Board members, giving the Board a 2-1 Republican majority. The Board now has the requisite quorum needed to clear the backlog of cases and start issuing decisions. Murphy, who will serve as Board chair, will have a term that expires on December 16, 2027, while Mayer’s term will expire on December 16, 2029.  At this time, a third Republican nominee has yet to be named and confirmed, which means the Board may adhere to its longstanding policy of not changing precedent without three votes in the affirmative. Additionally, Crystal Carey was sworn in as the Board’s general counsel for a four-year term. Read here for Littler’s insight. 

U.S. DOL’s Wage and Hour Division Issues Six New Opinion Letters

On January 5, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued six new opinion letters intended to provide meaningful compliance assistance to the regulated community on how the Department’s regulations apply to specific workplace situations. Four of the letters respond to questions related to Fair Labor Standards Act (FLSA) compliance, including: 

FLSA2026-1: Whether an employee’s role meets the criteria for the learned professional exemption under section 13(a)(1) of the FLSA, and, if so, whether an employer is nevertheless permitted to reclassify the employee as non-exempt. Read Littler’s analysis here.

FLSA2026-2: Whether section 7(e) of the FLSA permits an employer to exclude certain bonus payments from an employee’s regular rate of pay. The letter also addresses how to include these payments in the calculation of employee overtime premiums if the payments must be included in an employee’s regular rate of pay. Read Littler’s analysis here.

FLSA2026-3: Whether a union and employer can enter into a collective bargaining agreement that mandates a 15-minute “roll call” prior to each scheduled shift but excludes that time when calculating overtime premiums under the FLSA. Read Littler’s analysis here.

FLSA2026-4: Whether, for purposes of the overtime exemption for certain commissioned employees in section 7(i) of the FLSA, an employer in a jurisdiction in which the state minimum wage exceeds the federal minimum wage must use the federal minimum wage, or alternatively, the higher state minimum wage, to determine whether it has satisfied the minimum pay standard in section 7(i)(1), and whether tips are deemed compensation for purposes of section 7(i)(2)’s requirement that more than half the employee’s compensation consist of commissions. Read Littler’s analysis here.

The other two letters respond to questions related to the Family Medical Leave Act (FMLA) compliance, including: 

FMLA2026-1: How a school closure of less than a full week impacts the amount of leave a school employee uses under the FMLA. 

FMLA2026-2: Whether FMLA leave may be used for time spent traveling to or from medical appointments, including where an employee provided the employer with medical certification from a health care provider that confirms the employee’s need for the appointment, but the certification does not address travel to or from the appointment. 

Opinion letters issued by the Department’s WHD are official publications that explain how the DOL enforces various laws and regulations under specific scenarios submitted by a requesting party. Opinion letters offer timely guidance to both employers and individuals, while also providing insight into the agency’s likely positions in future rulemaking or litigation. While they do not override existing statutes or regulations, they provide authoritative guidance that can help employers and individuals navigate compliance with greater confidence. Employers that rely on an opinion letter in good faith may use that reliance as a defense against potential liability, liquidated damages, and an extension of the statute of limitations to three years for an alleged willful violation under the Fair Labor Standards Act. Read here for further Littler guidance. 

Proposed Independent Contractor Rule at OIRA

The White House Office of Information and Regulatory Affairs (OIRA) yesterday received a proposed rule from the U.S. Department of Labor’s Wage and Hour Division (WHD) relating to employee or independent contractor status under the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA). It is unclear if this proposal is simply a rescission of the Biden administration rule; a rescission of the Biden rule and replacement with a rule from first Trump administration; or something else entirely. Assuming OIRA has no significant changes, the Department can then move ahead and publish the proposed rule. OIRA’s review time can vary widely, but if this proposal is a rescission and/or rescind and replace with a prior Trump rule, we may see a proposed rule for public comment in the near future. WPI will keep clients apprised as we learn more information.

Chair Walberg to Hold Hearing on Artificial Intelligence 

House Education and Workforce Committee Chair Tim Walberg will hold the first hearing in a series to examine the impacts of artificial intelligence (AI) on the American workforce. The hearing, titled “Building an AI-Ready America,” is scheduled for Wednesday, January 14 at 10:15 a.m. ET and will be live-streamed on the Committee’s YouTube page.

Administration Releases Additional H-2B Visas 

The U.S. Departments of Labor and Homeland Security announced last week they will make an additional 35,000 H-2B temporary nonagricultural workers visas available for FY2026 (on top of the congressionally mandated 66,000 H-2B visas that are available each fiscal year) to support American businesses with seasonal or temporary workforce needs in critical infrastructure sectors of the economy. The Departments will release the additional visas, including eligibility criteria and filing requirements, in the coming weeks via a temporary final rule published in the federal register.