What Employers Should Expect in 2022, Non-COVID Edition | Quarles & Brady LLP

If your business employed 100 or more workers, chances are you spent a lot of time and effort understanding and preparing for the temporary emergency COVID-19 vaccine or test standard. ‘OSHA. That came to a swift end on January 13, 2022, when the U.S. Supreme Court essentially struck down OSHA’s blanket rule, and OSHA later withdrew it. But what is the next step? This article explores what Congress and the Biden administration plan to do in 2022 in the area of ​​jobs.

Next Congress Action

On the legislative side, Congress has come together to back a sexual misconduct bill inspired by the #MeToo movement. House Resolution 4445 aims to make binding arbitration agreements unenforceable in cases of sexual assault and sexual harassment, allowing workers to bring public lawsuits against employers for sexual misconduct in the workplace. Workers’ rights organizations and other advocacy organizations hope that striking down such mandatory arbitration clauses will prevent repeat offenders from escaping public scrutiny and encourage employees to file complaints. The bill passed the House with 335 votes in favor and 97 votes against on February 7, 2022. Senate Majority Leader Chuck Schumer said he expected the bill to pass quickly through the Senate, sending it to President Biden’s office for final signing in the coming days. weeks.

While the resolution to end forced arbitration moved quickly, the same could not be said for the resolution regarding federally paid sick leave. President Biden introduced this proposal in his Build Back Better plan, which included a paid family and sick leave plan. Currently, the federal Family Medical Leave Act allows up to 12 weeks of unpaid leave for illness, new parenthood, and caring for sick family members. The United States is among the minority of high-income countries with no guaranteed compensation for such situations. The House of Representatives passed a program that would provide four weeks of paid family and sick leave in November 2021, but the Senate is not expected to pass the bill, likely leaving the resolution in the dust.

Minimum wage level for FLSA exemption

The Wage and Hour Division of the Department of Labor (WHD) plans to update the minimum wage level requirements of the Fair Labor Standards Act (FLSA) 13(a)(1) exemptions. Under these exemptions to the FLSA, employees working in certain managerial, administrative, professional, and computer-related occupations are exempt from minimum wage and overtime requirements as long as their occupations meet two requirements set forth in the regulations: (1) the criterion of functions; and (2) the minimum wage level criterion.

Currently, the minimum wage level is set at $684 per week. This amount increased from $455 per week in 2019. Readers will recall that in 2016 the Obama administration attempted to raise the minimum wage to $913 per week, but the Obama rule was struck down by the courts. federal. The WHD did not indicate where it will attempt to set the new salary level, but indicated that it aims to update this salary level frequently in order to promote greater stability, avoid salary level increases salary disruptions that can result from long gaps between updates, and ensure appropriate salary protection. The rule is currently in the “proposed rule stage” and WHD has targeted April 2022 as its target release date, but these dates can often be revised.

Modernization of the Davis-Bacon and Related Acts

The WHD too plans to update and modernize the regulations implementing the Davis-Bacon and related laws in the hope of “providing greater clarity and improving their usefulness in the modern economy”. The Davis-Bacon Act requires that laborers and mechanics employed under a federal contract or subcontract over $2,000 receive “locally prevailing wages” and benefits generally paid on similar projects. The prevailing wage is determined by the Secretary of Labor and must be “prevailing in the locality of the project”, for a similar occupation using similar skills for comparable work. The work may include the construction, alteration or repair, including painting and decorating, of public buildings or public works. The prevailing wage requirement also applies to about 60 other laws enacted by Congress that help construction projects through grants, loans, loan guarantees and insurance, called “related acts.” It’s unclear exactly what the WHD plans to clarify and improve this year. The rule is currently in the “proposed rule stage,” which means it will likely be posted for review and comment soon.

OSHA Heat Illness Prevention Rule

Following the Biden administration’s September decision announcementOccupational Safety and Health Administration (OSHA) plans regulate heat-related hazards in the workplace. Workers, especially those in essential roles in the agriculture and construction industries, risk exposure to dangerous heat, leading to emergency room visits and even death. According to OSHA, these jobs are disproportionately held by workers of color. As temperatures rise, this risk only increases.

Currently, heat issues are addressed by OSHA’s “General Duty Clause”, which requires employers to provide a work environment “free from recognized hazards that cause or are likely to cause death or physical harm.” serious”. However, OSHA noted that states with specific workplace heat requirements, such as California, performed significantly more inspections than OSHA, resulting in heat-related violations. . In order for it to do the same, OSHA plans to take the following actions: (1) initiate a rule-making process to develop a workplace heat standard; (2) implement a heat risk enforcement mechanism using its existing tools; (3) develop a national program of emphasis on thermal inspections; and (4) form a heat task force to engage stakeholders and inform ongoing efforts.

OSHA has been accepting public comments on its Advance Notice of Proposed Rule since September 2021 and closed this option at the end of January 2022. OSHA will take the time to review each comment and will post its proposed rule afterward.

OSHA Infectious Disease Rule

OSHA has also announced a plan promulgate a standard regulating infectious diseases in the workplace. OSHA cited hazards such as tuberculosis, chickenpox and shingles, measles, SARS, MRSA and COVID-19 in the workplace. Although it has not yet been officially announced, it is highly likely that this rule will have to be significantly reduced or may never materialize given the recent Supreme Court decision. decision to rescind OSHA’s temporary emergency vaccine-or-test standard.

NLRB General Counsel Memos and Agenda

On August 12, 2021, the National Labor Relations Board’s (NLRB) new General Counsel, Jennifer Abruzzo, released a comprehensive memorandum regarding the NLRB precedent set under the Trump administration and the processes for dealing with the cases she s will strive to change during his four-year term. as part of its mandatory submissions to the memorandum of advice. Areas of focus identified by General Counsel Abruzzo in the memo include Employer Handbook rules under the standard established in The Boeing Company.365 NLRB No. 154 (2017), confidentiality clauses in separation agreements Baylor University Medical Center, 369 NLRB No. 43 (2020), the NLRB Independent Contractor Test and the Standard for Determining What Constitutes a Protected Concerted Activity under the NLRA (among others). A copy of the memo is available here: Mandatory Notice Submissions.

More recently, on February 1, 2022, the Advocate General of Abruzzo announced an initiative to seek injunctions under Section 10(j) of the NLRA in cases where employees have been subjected to threats or other coercive behavior during an organizing campaign. A copy of the memo is available here: February 1, 2022 MEMO GC.

The NLRB has also announced in its regulatory agenda that it plans to engage in developing rules on the standard for determining whether two employers are “co-employers” under the NLRA. The Board is widely expected to revert to the standard issued under the Obama administration, which does not require the so-called joint employer to actually exercise control over the terms of employment, as long as the company has such authority.

Law on Protection of the Right to Organize (“PRO”)

In March 2021, the House of Representatives passed the PRO Act, which is far-reaching pro-union legislation that failed to gain traction in the Senate, as it was particularly disadvantaged by Republican senators. Among its key provisions, the PRO Act allows unions to override state right-to-work laws and collect dues from employees who withdraw from a union, prohibits union participation/campaigning employer in union elections and imposes personal liability on managers and corporate officers for potential violations of employee rights. The PRO Act would also change the NLRB’s election rules and, in the event that a collective bargaining agreement is not successfully negotiated by an employer and union within ninety days of the start of negotiations, would provide that a contract may be imposed on the parties by an arbitration panel. . Absent a change in the makeup of the Senate (or its filibuster rule), we believe the PRO Act in its current form is unlikely to become law. A copy of the PRO law is available here: Text of the PRO law.

EEOC plans are coming soon

The EEOC’s current strategic plan was established in 2018 and will run through September 2022. The strategic plan outlines the agency’s priorities for litigation and other goals, and a new plan is expected to follow. fall 2022.

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