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:

FEDERAL:

• 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),

MONTANA:

• 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.

UPCOMING CALENDAR EVENTS:
WEBCASTS

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

OTHER KEY DEADLINES:

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. 1^st - 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. 13^th - 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.

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.

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