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     Montana State Council

    Affiliate of the Society for Human Resource Management


    September 2023

    NLRB Broadens Scope of Protected Concerted Activity

    A new ruling from the National Labor Relations Board (NLRB) will make it easier for workers to get legal protection for concerted activity at the workplace.

    The board ruled in Miller Plastics that a manufacturer violated the National Labor Relations Act (NLRA) by firing an employee who publicly questioned the company's COVID-19 protocols and its move to remain open in March 2020 when Pennsylvania ordered nonessential businesses to close, said Melissa Atkins, an attorney with Obermayer in Philadelphia.

    Under the NLRA, businesses cannot fire, discipline or retaliate against workers for engaging in protected concerted activity.

    Concerted activity refers to individual employees trying to encourage group action for mutual aid and protection. Examples of this include talking with your co-workers about your wages and benefits, circulating a petition asking for better hours, and participating in a refusal to work in unsafe conditions, according to the NLRB.

    Tips for Employers

    Going forward, employers should proceed cautiously before taking disciplinary action against any nonsupervisory employee who has complained about terms or conditions of employment, Jenero said.

    To prevail in an unfair labor practices hearing, an employer could try to show that it would have taken the same action, regardless of the concerted nature of the activity. "The best way to be well positioned to make these arguments is to follow good HR practices, such as clearly articulated policies, thorough investigations and consistent application of discipline," Crawford said.

    SHRM Article Link: NLRB Broadens Scope of Protected Concerted Activity

    Closely Examine Overtime Ramifications for Exempt Positions Earning Less than $60K

    In response to the U.S. Department of Labor's (DOL's) proposed overtime rule, employers should look carefully at any exempt positions earning less than $60,000 per year, said Kevin Young, an attorney with Seyfarth in Atlanta, to attendees of a SHRM Government Affairs webcast on Sept. 6. 

    If the rule is finalized and implemented, overtime protections would be extended to approximately 3.6 million more workers under the Fair Labor Standards Act (FLSA), according to the DOL.

    The proposed rule would:

    • Increase the salary threshold from $684 per week ($35,568 annually for a full-year worker) to $1,059 per week ($55,068 annually for a full-year worker). The increase reflects the 35th percentile of weekly earnings of full-time salaried workers in the lowest-wage census region (currently the South).
    • Increase the salary threshold for highly compensated employees from $107,432 annually to $143,988 annually. The increase reflects the earnings of the 85th percentile of full-time salaried workers nationally.
    • Implement automatic increases every three years to all salary thresholds.

    SHRM Article Link: Examine Overtime Ramifications for Exempt Positions Earning Less than $60K

    NLRB Decisions Curb Employers’ Ability to Make Unilateral Changes

    Two new rulings from the National Labor Relations Board (NLRB) prohibit employers from modifying employment terms, such as pay, schedules and benefits, during a gap between union contracts.

    The rulings handed down on Aug. 30 overruled Raytheon, a 2017 decision that gave employers greater leeway to make unilateral changes affecting unionized workers during a contractual hiatus or during negotiations for a first contract

    SHRM Article Link: NLRB Decisions Curb Employers’ Ability to Make Unilateral Changes


    I had the wonderful opportunity to attend a legal session sponsored by the Big Sky Chamber and SHRM community (Thank you Bethany Davies!) last week and was it presented by Mark Feddes with Crowley Fleck.  He went through a number of federal level cases and rulings as well as Montana bills and cases. Here are a few of the topics he spoke to:


    • McLaren Decision (NLRB) – which addresses confidentiality and disparagement in severance agreements. The NLRB in Feb. of this year issued a decision in this case holding that severance agreements containing overly broad non-disparagement or confidentiality/non-disclosure clauses violate the rights of employees under Section 7 of the National Labor Relations Act (NLRA). The NLRB basically ruled that a severance agreement to a union worker can have a “Chilling effect” on speaking out against the company. This will also apply to non-union and the NLRB will be scrutinizing more closely severance agreement cases.
    • PUMP Act (Providing Urgent Maternal Protection)  Enforcement began in April of this year under the FLSA.  It first applied to hourly workers only then expanded to exempt employees. It requires employers to provide proper break times and an adequate private space for nursing mothers to relieve for up to one year. He stated that a reasonable break is 2-3 breaks in an 8 hour shift of up to 20minutes per break but that can vary based on situations.
    • Other topics he covered were the Pregnant Workers Fairness Act, FTC ruling on Non-Compete agreements (2016 Jimmy Johns case and 2021 Biden’s Executive order enforcing the FTC to review non-competes),


    • HB 702 – which prevented discrimination based on vaccine status and applied to all vaccines and bans required proof of vaccine to employers.  It was passed in 2021 and since then 9 other states have adopted.  Exceptions include:
      • Kids vaccines for schools
      • Health Care facility workers
      • Nursing home and Assisted Living staff

    He also covered Federal mandates such as OSHA, CMS, which have in all essence are no longer in effect.

    • SB 270 – Which prohibits termination for Social Media posts. In summary it states discharge of an employee is wrongful if the employee is exercising an expression of free speech including comments on social media.  It also does not allow employers to require submission of social media accounts from employees.  However, it does not apply if employee violates a company policy or employee contract. He said these areas must be carefully handled before terminating.


    The Multi-Generational Workforce Today: What Workers Want and What It Means for Employers
    Sept. 15, noon ET / 9 a.m. PT


    How to PUMP Up Your Workplace Lactation Program and Stay Compliant
    Sept. 18, 4 p.m. ET / 1 p.m. PT


    I-9 Compliance Success: Must-Know Tips and Troubleshooting
    Sept. 20, 2 p.m. ET / 11 a.m. PT



    Deadline to Comment on Pregnant Workers Fairness Act Proposed Rules
    The EEOC has posted a notice of proposed rulemaking to implement the Pregnant Workers Fairness Act—a law that requires employers to make reasonable changes in the workplace to support employees who have pregnancy-related limitations. The public is invited to comment until Oct. 10.

    EEO-1 Reporting Period Begins
    The Equal Employment Opportunity Commission has announced that the EEO-1 filing platform will open Oct. 31 with a filing deadline of Dec. 5.


    Employers Must Begin Using the New Version of Form I-9
    Nov. 1st - The new version of Form I-9 was released by U.S. Citizenship and Immigration Services on Aug. 1. Employers can use the previous version of the form through Oct. 31, 2023. After that, all employers must use the revised Form I-9.


    The Women in Leadership Institute (Through Nov. 16)
    Nov. 13th - The Women in Leadership Institute, which will be held in Orlando, Fla., and virtually, is a four-day learning conference equipping women leaders with actionable strategies to overcome the hurdles they often face in the workplace. Presented by SHRM, this immersive leadership opportunity accelerates the advancement of women across all levels, industries and roles, while providing career-changing networking opportunities.

    August Update


    Yesterday, the Wage and Hour Division (WHD) of the Department of Labor (DOL) announced the issuance of a notice of proposed rulemaking for “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees.” (the “Overtime Proposed Rule”).

    DOL’s stated goal is to “set effective earnings thresholds to help define and delimit the Fair Labor Standards Act’s (FLSA) ‘white collar’ or executive, administrative, or professional (EAP) exemption.”

    Under FLSA, workers who work in excess of 40 hours a week are entitled to overtime pay, which is set at 1.5x their regular rate, unless the employee is otherwise exempted. There are three tests used to determine if an employee is a “bona fide executive” and therefore exempt: the employee must be paid a “predetermined and fixed salary” that meets or exceeds a certain threshold; and the employee must perform certain defined work responsibilities.

    According to DOL, the proposed rule would:

    • Increase the proposed salary threshold from $684 per week ($35,568 annually for a full-year worker) to $1,059 per week ($55,068 annually for a full-year worker). The increase reflects the 35th percentile of weekly earnings of full-time salaried workers in the lowest-wage Census Region (currently the South). 
    • Increase the salary threshold for Highly Compensated Employees (HCEs) from $107,432 annually to $143,988 annually. The increase reflects the annualized weekly earnings of the 85th percentile of full-time salaried workers nationally ($143,988).
    • Implement automatic increases every three years to all earnings thresholds. This determination would be based on the most recent available four quarters of data, as published by the Bureau of Labor Statistics (BLS). 
    • Apply the standard salary level to employees in all territories that are subject to the federal minimum wage, except for American Samoa, which maintains a special minimum wage rate. 

    The DOL has increased the salary levels eight times since the FLSA was originally passed in 1938. The most recent changes to the salary level were reflected in a 2019 rulemaking, which became effective in 2020. DOL is seeking public comment on several aspects of this proposed rule, and members of the public have 60 days from the date of publication to submit a comment.


    On Wednesday, September 6 at 4 p.m. ET SHRM Government Affairs will host a first-word alert webcast on the Overtime Proposed Rule. Register for this webcast today. More speaker details will be announced soon.


    August Legislative Reminders

    Remotely Verified Form I-9 Documents Must Be Physically Examined by Aug. 30

    Employers that verified remote hires’ Form I-9 identity and work authorization documents virtually during the pandemic are required to physically inspect those documents by Aug. 30, and update the employees’ relevant I-9 forms as appropriate.

    Employers Anticipate 7% Rise in Health Care Costs for 2024

    August 17, 2023

    Fueled by chronic health conditions, catastrophic health claims and rising prescription drug prices, health care costs will experience a sizable hike next year, employers say.

    U.S. corporate employers project a median health care cost increase of 7 percent for 2024, according to new data from the International Foundation of Employee Benefit Plans (IFEBP), a nonpartisan group with more than 31,000 members. It's the second year in a row that employers have projected a 7 percent hike.


    • SHRM Governmental Affairs is encouraging legislative directors and members of the A-Team to schedule at least one in-person or virtual meeting with their federal lawmakers or district staff before Sept 1, 2023

    SHRM Webcasts:

    New Rules of Engagement: Invigorate Employees with Benefits that Go Beyond the Basics
    Sept. 14, 2 p.m. ET / 11 a.m. PT

    New Research: 5 Ways Employers Can Put Health Care Within Reach of All Employees
    Sept. 19, noon ET / 9 a.m. PT


     Form I-9, Employment Eligibility Verification (PDF, 477.5 KB).

    Highlights of changes:

    • Effective now. You can use the old version through Oct. 31st.
    • Revises the list of acceptable documents and includes some receipts which are acceptable.
    • Reduced sections 1 &2 to a single page, however, it still has 2 pages.
    • The second page is Supp A & Supp B – now a stand-alone doc
      • Page for Preparer/translator and B is for rehire/reverification
    • Includes a check box for those examining the form under the new virtual procedure
      • Employers must be enrolled in E Verify
      • Conduct a live video to verify
      • Still retain clear and legible copies

    ICE (Immigration & Customs Enforcement) announced that employers have 30 additional days in which they can review I-9’s in person for remote staff whose documents were examined remotely. The original deadline was July 31st for those hired after March 20, 2020.

    SHRM Article Link: Complying with I-9 and E-Verify Requirements in the United States (


    Many employer handbooks and policies likely should be reviewed and revised following a landmark Aug. 2 ruling by the National Labor Relations Board (NLRB).  This new rule applies to all employers unionized or not who fall under the NLRA; (National Labor Relations Act).

    In Stericycle, an administrative law judge found that the employer violated the NLRA by maintaining certain rules for its employees that addressed personal conduct, conflicts of interest and confidentiality of harassment complaints. The NLRB announced a new standard for whether work rules violate the NLRA and sent the case back to the judge to consider the ruling in light of the new standard.

    Under that standard, if an employee could reasonably interpret the work rule to have a coercive meaning, the NLRB general counsel would have met her burden to prove that the rule has a reasonable tendency to chill employees from exercising their NLRA rights.

    The employer's intent in maintaining a work rule is immaterial, the NLRB wrote. The board instead clarified it will interpret the rule from the perspective of an employee who is subject to the policy, economically dependent on the employer and contemplates engaging in protected concerted activity.

    While this ruling may be appealed, however, the Board is enforcing the new standard.

    SHRM Article Link: Handbooks Need Revision Following NLRB Ruling (


    Effective July 27th, the DOL announced a final rule requiring federal contractors that use of “persuaders” consultants or attorneys who inform employees about all the possible effects of unionization as part of union avoidance must publicly identify themselves by checking a new box on the LM -10 form.  Employers must file the form to disclose certain financial dealings and now includes the use of “persuaders”

    The driving force is more employees are seeking unionization thus employers are becoming more prevalent to using union avoidance consultants.

    SHRM Article Link: Federal Contractors Must Publicize Whether They Use Union Avoidance ‘Persuaders’ (


    The U.S. Equal Employment Opportunity Commission (EEOC) on Aug. 7 announced a proposed rule for implementing the Pregnant Workers Fairness Act. The proposed rule provides numerous examples of possible reasonable accommodations and seeks input on whether there should be more examples and for what additional situations.

    In addition, the EEOC sought comment on particular issues, including existing data on the average cost of pregnancy-related accommodations.

    SHRM Article Link: Proposed Regulations for Pregnant Workers Fairness Act Issued (


    The high court decided multiple employment-related cases between Oct. 2022 through June 2023.
    Affirmative Action.

    SHRM Article Link: Supreme Court Dismantles Affirmative Action in College Admissions (

    • One of the more high-profile cases, the court ended affirmative action in student admissions at colleges that receive federal money. In Students for fair admissions v President and Fellows of Harvard College applies to student admissions processes and not the colleges’ operations as employers.

    The court concluded that race-conscious admissions policies violated the 14th amendment’s “twin commands that race may never be used as a negative and that it may not operate as a stereotype.

    Religious Freedoms.

    SHRM Article Link: Employers May Need to Change Religious Accommodation Policies (

    • In Groff v DeLoy a Christian postal worker sued the US Postal service for not accommodating his religious practice of observing Sunday the sabbath.  The court concluded employers can only deny an employees request for a religious accommodation under federal law if the employers can prove the accommodation would result in substantial increased costs for the business.

    The 303 Creative decision is part of a trend of current Supreme Court giving greater weight to religious freedom concerns.

    • Overtime pay.

    SHRM Article Link: Supreme Court Upholds Salary Requirement for Overtime Exemption (

    In the case Helix Energy solutions v Hewitt, the court ruled that highly compensated employees can be eligible for OT pay under the FLSA if they are paid daily. The ruling showed the importance of applying the OT exemption criteria properly, since misclassifying someone as exempt can be costly in the long run.

    The US DOL and federal courts continue to apply a strict and pro-employee interpretation of the FLSA OT exemption tests.


    • SHRM Governmental Affairs is encouraging legislative directors and members of the A-Team to schedule at least one in-person or virtual meeting with their federal lawmakers or district staff before Sept 1, 2023

    SHRM in -District Advocacy Workshop, Wednesday August 9th at 4pm ET

    SHRM Webcasts:

    • SHRM Benefits Trends Virtual Retreat. “Exploring Benefit Trends: Strategies to Enhance Your Benefit Package and Gain Competitive Edge – August 17th Noon ET.
    • Volunteer Leader Connection Webcast Thursday, August 24th 3pm ET
      • (Monthly, typically the last Thursday of the month)

    Grover Wallace – Montana State Legislative Director

    SHRM’s Advocacy Team (A Team)

    Did you know you can join SHRM’s Advocacy Team (A Team) and be part of MTSHRM A-Team in one simple step. You can chose to be part of influencing workplace policies by emailing or calling lawmakers, visiting district offices or attending State Advocacy Days. Resources are available to assist with advocacy and elevate the voice of HR.

    You can also stay informed on current discussions and hot topics regarding workplace policies by simply texting ATEAM to 52886 or visit to learn more about SHRM Advocacy. 

    Additional Resources:

    Join the Montana SHRM State Council Mailing List

    Need the 2022 conference information?  Please check out the information on the WHOVA web app: