Legislative
Legislative
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:
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 MONTANA UPDATES
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: FEDERAL:
MONTANA:
He also covered Federal mandates such as OSHA, CMS, which have in all essence are no longer in effect.
UPCOMING CALENDAR EVENTS: The Multi-Generational Workforce Today: What Workers Want and What It Means for Employers
OTHER KEY DEADLINES: Deadline to Comment on Pregnant Workers Fairness Act Proposed Rules EEO-1 Reporting Period Begins |
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Employers Must Begin Using the New Version of Form I-9 |
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The Women in Leadership Institute (Through Nov. 16) |
August Update
OVERTIME DOL RULEMAKING ALERT!
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:
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. |
WEBCAST SESSION ON OT RULES
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.
REGISTER FOR SHRM'S OVERTIME PROPOSED RULE FIRST-WORD ALERT WEBCAST
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.
UPCOMING CALENDAR EVENTS:
- 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 |
New Research: 5 Ways Employers Can Put Health Care Within Reach of All Employees |
AUGUST 2023 LEGISLATIVE UPDATE
REVISED I-9 FORM
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 (shrm.org)
NEW NLRB RULING ON HANDBOOKS – DO YOU NEED TO REVISE?
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 (shrm.org)
FEDERAL CONTRACTORS MUST PUBLICIZE WHETHER THEY USE A UNION AVOIDANCE “PERSUADER”
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’ (shrm.org)
PROPOSED REGS FOR PREGNANT WORKERS FAIRNESS ACT ISSUED
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 (shrm.org)
A FEW RECENT US SUPREME COURT DECISIONS AFFECTING EMPLOYMENT LAW
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 (shrm.org)
- 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 (shrm.org)
- 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 (shrm.org)
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.
UPCOMING CALENDAR EVENTS:
- 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 https://advocacy.shrm.org/about-us/ 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: https://whova.com/