Congress is currently on its August recess, so let’s take a look at what to expect for the balance of 2018 as well as significant developments that have occurred so far this year.
Purple Communications. On August 1, the National Labor Relations Board (NLRB) issued a notice to file briefs regarding employee use of employer email, specifically on whether it "should adhere to, modify, or overrule Purple Communications"—a 2014 ruling that permits employees to use company email systems, on nonworking time, for communications protected by Section 7 of the National Labor Relations Act (NLRA), including to solicit support for union organizing activities.
Briefs are due by September 5, 2018. We will keep you posted on any significant activity.
Employee Rights Act. Last week, the House introduced the Employee Rights Act of 2018. The legislation would amend the National Labor Relations Act (NLRA) and the Labor-Management Reporting and Disclosure Act (LMRDA). Specifically, the legislation includes three major provisions and seeks to:
- Amend the NLRA so that a union must be certified through a secret ballot election rather than a card check campaign in order to protect workers’ privacy.
- Update the LMRDA to require unions to receive permission from employees before using their union dues for activities not related to collective bargaining.
- Allow employers to request a secret ballot recertification election if more than 50 percent of a bargaining unit’s membership turns over.
Like much employment legislation this year, this will likely sit in the House for some time. We will keep you posted on any significant activity.
Paid Parental Leave Bill Introduced. On August 2, 2018, the Senate introduced the Economic Security for New Parents Act—a paid parental leave bill. The bill is designed to be self-financing, as employees who voluntarily opt-in will draw on their Social Security benefits for two months in exchange for delaying the collection of retirement benefits by an equal amount of time (2 months). The bill is limited to paid parental leave only and does not address other forms of paid leave (e.g., paid sick leave).
It is far from certain if this will ultimately pass both chambers and make it to the President’s desk. We will keep you posted on any significant activity.
OSHA Proposes Electronic Recordkeeping Rule Revision. Last week the Occupational Safety and Health Administration (OSHA) issued a proposed rule to amend its 2016 injury and illness recordkeeping regulation. The proposed rule aims to eliminate the requirement that establishments with 250 or more employees electronically file Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (Injuries and Illnesses Incident Report) but require that the establishments file Form 300A (Summary of Work-Related Injuries and Illnesses).
At this point, OSHA is only soliciting comments on its proposed revision of the rule and no changes have been made. Comments are due by September 30.
House Approves Health Care-Related Tax Packages.
Last week, the House cleared two bipartisan health care-related tax packages. The packages, combining several bills, aim to expand health savings accounts (HSAs) and the health insurance premium tax credit, as well as delay the so-called "health insurance tax." Specifically, the Increasing Access to Lower Premium Plans and Expanding Health Savings Accounts Bill of 2018 would delay the annual fee for health insurance providers through 2021 and increase access to catastrophic "copper" plans as well as allow coverage to be used with HSAs.
In addition, the Restoring Access to Medication and Modernizing Health Savings Account Bill would expand access to HSAs, and it would allow certain over-the-counter products to be considered qualified medical expenses. Moreover, the measure would allow HSA funds to be used for certain gym memberships and exercise equipment.
How the health care-related tax packages will fare in the Senate remains to be seen. At this time, the Senate is not expected to approve the packages in their entirety. Several Republican and Democratic senators have expressed doubts as to the measures’ chances of success.
New Leadership at the OFCCP
The Director of the Office of Federal Contract Compliance Programs (OFCCP) Ondray Harris, recently stepped down from his lead role. OFCCP Deputy Director Craig E. Leen is serving as the interim director until the agency names a permanent head. On August 1, 2018, at the 2018 Industry Liaison Group (ILG) National Conference, Mr. Leen spoke to the group about the four pinnacles of change the current administration is focused on, which are: Transparency, Certainty, Efficiency, and Recognition. He also shared a document entitled "What Federal Contractors Can Expect."
Over the last year, the OFCCP has taken a more employer friendly, collaborative approach to compliance—most notably, when it issued a two-year extended moratorium of enforcement activities against health care providers operating under TRICARE and its Town Hall Action Plan initiative, which is designed to better assist contractors with their compliance obligations. It is anticipated that this cooperative approach to compliance will continue under the new leadership.
Cook County, IL, Paid Sick Leave Update. On November 6, 2018, Cook County, Illinois, will pose the following question to voters: "Shall your municipality match the Cook County earned sick time law which allows for workers to earn up to 40 hours (5 days) of sick time a year to take care of their own health or a family member’s health?"
The Cook County Earned Sick Leave Ordinance became effective July 1, 2017. However, many municipalities within Cook County have opted out of the ordinance’s coverage and the ballot question will help gauge interest in whether the ordinance is eventually modified, maintained, or abolished.
EMPOWER ACT. Last month the House and Senate introduced the "Ending the Monopoly of Power Over Workplace Harassment Through Education and Reporting (EMPOWER) Act." The legislation focuses on:
- Banning companies from having nondisparagement and nondisclosure agreements in their contracts,
- Requiring public companies to disclose all their settlements in the annual filings to the U.S. Securities and Exchange Commission (SEC),
- Creating a confidential tip-line to supplement the current complaint system at the Equal Employment Opportunity Commission (EEOC),
- Revising the tax code so taxpayer money is not used to fund harassment settlements, and
- Mandating that companies have sexual harassment prevention training programs in place.
Given the continued national discussion surrounding the #MeToo movement and that this bill has bipartisan support, the EMPOWER Act could gain traction in the coming months. We will keep you posted on any significant developments.
Significant Developments to Date in 2018:
NLRB Issues Guidance on Handbook Rules
In June, the National Labor Relations Board (NLRB) issued new guidance on handbook rules. Specifically, the NLRB General Counsel issued a memorandum to the Regions that provides general guidance about the placement of various types of rules—broken into the three categories. The entire article can be found here.
This guidance provides employers with a helpful roadmap for navigating the NLRB’s more employer-friendly and commonsense approach to how a Regional Office will interpret an unfair labor practice charge. The memo makes clear that ambiguities in rules should no longer be interpreted against the employer and generalized provisions should not be interpreted as banning all activity that could conceivably be included. Clearly, the pendulum at the NLRB has swung back to the pre-Obama era where the Board will apply a more balanced approach to the realities of running an effective workplace and the Section 7 rights of employees.
If your organization determines your handbook policies need a review or an overhaul, consider using MRA’s Handbook Services to serve as an extra set of hands to help get this completed.
Supreme Court Deals Significant Defeat to Public Unions
Also in June, the U.S. Supreme Court issued a highly anticipated decision impacting public sector unions, employers, and employees. In Janus v. AFSCME Council 31, the Court reversed 41 years of labor law that permitted public unions in states such as Minnesota and Illinois to require that nonmembers pay a fair-share or agency fee. The entire article can be found here.
This decision is only the latest blow dealt to organized labor. It is anticipated that many public sector employees will opt out of membership as a result of this decision. Union representation in the private sector has been on a decline (now under 7 percent) for many years, and the Trump administration appointments to the NLRB and Department of Labor have resulted in many decisions opposed by unions.
MRA will continue to review this and other developments in labor relations for our members. If you have any questions please contact the Labor Relations staff at MRA.
Supreme Court Upholds Right to Class Action Waivers
In May, the U.S. Supreme Court issued its decision in Epic Systems Corp. v. Lewis; Ernst & Young LLP v. Morris; and NLRB v. Murphy Oil USA, Inc. that arbitration agreements providing for individualized proceedings, and waiving the right to participate in class or collective actions, are lawful and enforceable. The entire article can be found here.
The Supreme Court ruling maintains what has long been the status quo and will require the National Labor Relations Board to resolve 55 pending cases that alleged employers violated the NLRA by enforcing individual arbitration agreements or policies containing class and collective action waivers. This landmark ruling reassures employers who wish to continue to incorporate and enforce mandatory class action waivers in their employment arbitration agreements.
Department of Labor (DOL) Announces Delay for Overtime Rule Update and Surprise Plan for Calculating Overtime
In May, the DOL announced another postponement regarding the "Overtime Rule" that was proposed to go in effect in December 2016. Initially, the DOL had planned to provide an update to the rule in the fall of 2018 based on comments received in the July 2017 Request for Information from the public; however, the DOL issued a Notice of Proposed Rulemaking to announce that the proposed salary threshold will be released in January 2019. The DOL also announced they will "clarify, update, and define regular rate requirements" in September. Currently, the regular rate of pay refers to an employee’s typical hourly rate, which is multiplied by 1.5 for any worked hours over 40 in a workweek. The release did not include any indication of the implications of the clarification.
MRA will update as soon as more information is provided.
ICE Investigations to Increase by Four to Five Times Over the Summer
U.S. Immigration and Customs Enforcement (ICE) has indicated they will increase workplace audits of employers substantially over the summer. Employers are urged to be prepared by updating their immigration and I-9 compliance practices. MRA offers I-9 audits for our members.
Source: Michael Hyatt, Director, HR Government Affairs, our sister association CAI in North Carolina, CCH/Wolters Kluwer, DOL.gov, NLRB.gov; OSHA.gov, Congress.gov