By Phillip B. Russell, Ogletree Deakins
It has been busy year for federal government regulation of the workplace — to say the least!
There is not enough space here to provide an update on all developments, but here are the top three. They are from the National Labor Relations Board (NLRB), the Occupational Safety and Health Administration (OSHA), and the Department of Labor’s (DOL) Wage and Hour Division. These developments affect how employers manage labor-organizing efforts, how employers manage OSHA inspections, and whether they can pay certain employees on a salary basis.
The first two follow Biden Administrations’ stated goal to be the most labor union friendly administration ever and they provide substantial support to labor organizing. Although less than 6% of employees in private workplaces in Florida (and nationally) a re represented by labor unions, there is a substantial movement underway to make it legally easier for labor unions and more difficult for employers to have a balanced process.
NLRB Adopts New Union-Friendly Recognition Standard
On August 25, 2023, the National Labor Relations Board adopted a new standard for union representation that requires an employer to recognize and bargain with a union that has demonstrated majority status unless the employer challenges the union’s support through an employer-initiated NLRB election and does so without committing an unfair labor practice. The ruling, combined with the resuscitation of the Board’s 2014 “ambush election” rules, will make it more difficult for employers to respond to demands for recognition from unions claiming to have majority support from the employees.
This newly adopted standard requires employers to recognize and bargain with a union that has demonstrated majority support from the targeted employees unless the employer elects to “promptly” file a petition for an election under Section 9(c)(1)(B) of the National Labor Relations Act, known as an RM petition, normally within two weeks after the union’s demand for recognition. However, if the employer invokes the NLRB’s jurisdiction and files an RM petition, but later commits an unfair labor practice not so minimal or isolated that it could not have affected the election results, the Board will set aside the election, dismiss the petition, and issue a remedial bargaining order requiring the employer to recognize and bargain with the union.
The decision comes a day after the NLRB revived its “ambush election” rules through the Board’s rulemaking authority. Those rules compress the period between the time a representation petition is filed and the actual election to just a few weeks and make it more difficult for employers to educate their employees about the realities of unionization.
The Board’s decision has significantly changed the process for union representation matters going forward. The Board’s new standard has placed greater responsibilities on employers faced with demands for recognition from unions attempting to represent their employees. The standard, when combined with the revived “ambush election” rules, also highlights the importance of union authorization cards (in both electronic and hard-copy forms) and the need for employers to proactively educate their workforces about unions and the potential legal implications of authorizing a labor organization to represent them for collective bargaining; union representation without voting on the issue in an NLRB-conducted election.
Employers who want to exercise their rights to lawfully remain union-free or educate employees on the realities of becoming dues-paying members of a labor union may want to review their strategies, policies, and procedures. Watch for IEC member webinars on this subject Fall 2023 and Spring 2024.
OSHA Proposes Rule to Allow Union Organizers to Join Inspections
On August 30, 2023, the Occupational Safety and Health Administration published a proposed rule, titled, “Worker Walkaround Representative Designation Process.” The proposal attempts to codify a controversial interpretation in a 2013 letter that OSHA withdrew after court challenges. Under this proposal, outside third-party employee representatives may accompany OSHA compliance safety and health officers during workplace inspections if they have “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces.” According to the proposal, third parties may include a “representative from a worker advocacy group, community organization, or labor union.” Employers should expect this rule to go in effect sometime in the first half of 2024. There will be court challenges, but it is not clear yet if they will succeed or if the rule will be stayed during the legal proceedings.
As above, employers may want to review their union-free policies and procedures as well as their OSHA inspection protocols. We plan to present a webinar for IEC members once this rule becomes final, depending on court challenges.
DOL Proposes Changes to Overtime Regulations
On August 30, 2023, the U.S. Department of Labor announced that it would issue a notice of proposed rulemaking to amend the regulations implementing the overtime provisions of the Fair Labor Standards Act. The effort represents another swing of the partisan pendulum, as this is the third administration in a row to propose changes to these regulations. This proposal:
- Sets the salary basis to the 35th percentile of weekly earnings of full-time salaried workers in the lowest-wage census region. This translates to a salary basis of $55,068 per year ($1,059 per week) — a 55% increase. However, because this is not a firm numerical figure but is instead based on evolving data, the proposal notes this threshold level could change, and perhaps climb as high as $60,209 per year ($1,158 per week) in just the first quarter of 2024.
- Increases the total annual compensation requirement for highly compensated employees from $107,432 per year to $143,988 per year, based on annualized weekly earnings amount of the 85th percentile of full-time salaried workers nationally.
- Automatically updates the salary basis threshold every three years.
The DOL is not proposing to change the duties test, which requires salaried positions to have certain minimum levels and types of primary duties, such as executive, administrative, and professional. Any final rule likely will not issue until 2024 and will undoubtedly be subject to multiple legal challenges.
Employers may want to consider reviewing their pay practices regarding both the salary basis test and the primary duties requirements for all salaried positions. Watch for webinars on these subjects for IEC members.
Phillip Russell is a long-time IEC member and recipient of the IEC 2022 Industry Achievement Award. He is a labor and employment lawyer who specializes in OSHA law and in deploying the best firm resources for clients who need help with any labor or employment law matters.