August 2023 Compliance Update
Handbooks Are On the Front Page
The NLRB clearly didn’t take the summer off. This month, the NLRB’s Stericycle decision reversed the previous standard of handbook policies being placed into one of three categories 1. Always Lawful 2. Sometimes Lawful and 3. Always Unlawful. Instead, employer’s handbook policies will now be assessed on a case-by-case basis (since we write handbooks often, we love the irony of this language). The decision is meant to protect employees' rights under the National Labor Relations Act and concerted activity. Now handbook policies will be assessed as to whether or not the policy has a reasonable tendency to chill employees from exercising their rights. If the general counsel meets this burden, the employer may rebut the presumption of illegality by proving that (a) the rule advances a legitimate and substantial business interest, and (b) it cannot advance that interest with a more narrowly tailored rule.
EEOC Proposed Rule on Pregnant Workers Fairness Act
The Equal Employment Opportunity Commission announced a proposed rule implementing the Federal Pregnanct Workers Fairness Act this morning which triggered a 60-day comment period. The proposed rule focused on reasonable accommodations as well as the burden on the employer to show that an accommodation request may pose an undue hardship. The PWFA went into effect in June for employers with 15 or more employees. Both Rhode Island and Massachusetts have state-level versions of the PWFA that went into effect well before the federal law.
Unionization Just Got That Much Easier
The National Labor Relations Board issued a decision in Cemex Construction Materials Pacific, LLC which addresses when an employer is required to bargain in good faith with a union without a representation election. According to the new framework “when a union requests recognition on the basis that a majority of employees in an appropriate bargaining unit have designated the union as their representative, an employer must either recognize and bargain with the union or promptly file an RM petition seeking an election. However, if an employer who seeks an election commits any unfair labor practice that would require setting aside the election, the petition will be dismissed, and—rather than re-running the election—the Board will order the employer to recognize and bargain with the union.” This means that unions can represent the workforce without an election. BCHR recommends familiarizing yourself with the process and understanding the RM petition process so that you can respond quickly if applicable. Read more about the decision on the NLRB website.
Department of Labor Proposes an Increase to the Salary Test for Exempt Employees
The DOL proposed to raise the weekly salary from $684 per week to $1059 per week in the salary test for exempt positions. If you remember back a few years ago, employers faced an update to the salary test that felt much like a tumultuous relationship, roll it out, injunction, roll it out. Back and forth, back and forth. The proposal also includes an increase to the total annual compensation requirement for highly compensated employees from $107,432 per year to $143,988 per year
Though just a proposal, there is a notice and comment period and employers are not required to update their salaried exempt employees just yet. That being said, it’s always a good time to take a look at how your employees are categorized to ensure compliance with the existing salary threshold and exempt position requirements.
Keep an Eye On….
Some states are banning captive audience meetings….