What Should Employers Expect in 2022, Non-COVID Edition
If your business employed 100 or more workers, chances are you spent a lot of time and effort understanding and preparing for the OSHA COVID-19 vaccine-or-test Emergency Temporary Standard. That came to a quick end on January 13, 2022, when the U.S. Supreme Court essentially struck down the broad OSHA rule, and OSHA thereafter withdrew it. But what’s next? This article explores what Congress and the Biden administration plan to do in 2022 in the employment field.
Upcoming Congressional Action
On the legislative side, Congress has come together to support a sexual misconduct bill inspired by the #MeToo movement. House Resolution 4445 aims to render mandatory arbitration agreements unenforceable in the case of sexual assault and sexual harassment, allowing workers to bring public lawsuits against employers for workplace sexual misconduct. Workers’ rights and other advocacy organizations hope that the nullification of such mandatory arbitration clauses will prevent repeat offenders from escaping public scrutiny and encourage employees to come forward with allegations. The bill passed the House with 335 votes for and 97 votes against on February 7, 2022. Senate Majority Leader Chuck Schumer stated he anticipates the bill will be swiftly passed by the Senate, sending it to President Biden’s desk for a final signature within the coming weeks.
While the resolution to end forced arbitration moved quickly, the same could not be said for the resolution for federal 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 for up to 12 weeks of unpaid leave for sickness, new parenthood, and caregiving for sick family members. The United States is in the minority of high-income countries without a guarantee pay for these kinds of situations. The House of Representatives passed a program that would provide four weeks of paid family and sick leave in November of 2021, but the Senate is not expected to pass the bill, likely leaving the resolution in the dust.
Minimum Salary Level for FLSA Exemption
The Wage and Hour Division of the Department of Labor (WHD) plans to update the minimum salary level requirements of the Fair Labor Standards Act’s (FLSA) 13(a)(1) exemptions. Under these exemptions to the FLSA, employees working in certain executive, administrative, professional, and computer-related jobs are exempted from minimum wage and overtime requirements so long as their jobs meet two requirements set forth in the regulations: (1) the duties test; and (2) the minimum salary level test.
Currently, the minimum salary level is set at $684 per week. This was raised from $455 per week in 2019. Readers will recall that in 2016 the Obama administration attempted to raise the minimum salary to $913 per week, but that the Obama rule was barred by the federal courts. The WHD has not stated where it will attempt to set the new salary level, but has indicated that it aims to frequently update this salary level in order to foster greater stability, avoid disruptive salary level increases that can result from lengthy gaps between updates, and provide appropriate wage protection. The rule is currently in the “proposed rule stage” and WHD has targeted April 2022 as a target publication date, but these dates can often be revised.
Modernizing the Davis-Bacon and Related Acts
The WHD also plans to update and modernize the regulations implementing the Davis-Bacon and Related Acts in hopes to “provide greater clarity and enhance 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 be paid “locally prevailing wages” and fringe benefits typically paid on projects of a similar character. The prevailing wage is determined by Secretary of Labor, and must be “prevailing in the locality of the project,” for a similar craft using similar skills on comparable work. The work can include construction, alteration, or repair, including painting and decorating, of public buildings or public works. The prevailing wage requirement also applies to approximately 60 other statutes Congress has enacted which assist construction projects through grants, loans, loan guarantees, and insurance, known as “Related Acts.” It is unclear what exactly the WHD plans to clarify and enhance this year. The rule is currently in the “proposed rule stage,” which means it will likely be published for notice and comment soon.
OSHA Heat Illness Prevention Rule
Following the Biden Administration’s September announcement, the Occupational Safety and Health Administration (OSHA) plans to regulate heat hazards in the workplace. Workers, particularly those in essential roles within the agricultural and construction industries, are at risk of hazardous heat exposure, leading to visits to the emergency room and even death. According to OSHA, such jobs are disproportionately held by workers of color. As temperatures rise, this risk only increases.
Currently, heat concerns are addressed by OSHA’s “general duty clause,” which requires employers to provide a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” But, OSHA noted that states with specific workplace heat requirements, such as California, conducted significantly more inspections than OSHA resulting in heat-related violations. So that it may do the same, OSHA plans to take the following steps: (1) launch a rulemaking process to develop a workplace heat standard; (2) implement an enforcement mechanism on heat-related hazards using its existing tools; (3) develop a National Emphasis Program on heat inspections; and (4) form a heat work group to engage stakeholders and inform ongoing efforts.
OSHA has been accepting public comments on their advanced notice of proposed rulemaking since September 2021, and closed that option at the end of January 2022. OSHA will take time to review each comment and will publish its proposed rule thereafter.
OSHA Infectious Diseases Rule
OSHA also announced a plan to promulgate a standard regulating infectious diseases in the workplace. OSHA cited dangers such as TB, chicken pox and shingles, measles, SARS, MRSA, and COVID-19 in the workplace. While not officially announced yet, it is most likely that this rule will need to be significantly curtailed or might never come to fruition given the Supreme Court’s recent decision to strike down OSHA’s vaccine-or-test Emergency Temporary Standard.
NLRB General Counsel Memos and Agenda
On August 12, 2021, the new National Labor Relations Board (NLRB) General Counsel, Jennifer Abruzzo, issued a comprehensive memorandum regarding NLRB precedent established under the Trump administration and case-handling processes that she will push to change during her four-year term as part of her Mandatory Submissions to Advice Memorandum. The areas of focus outlined by General Counsel Abruzzo in the memo include employer handbook rules under the standard established in The Boeing Co., 365 NLRB No. 154 (2017), confidentiality clauses in employee separation agreements under Baylor University Medical Center, 369 NLRB No. 43 (2020), the NLRB's independent contractor test, and the standard for determining what constitutes protected concerted activity under the NLRA (among others). A copy of the memo is available here: Mandatory Submissions to Advice.
Most recently, on February 1, 2022, General Counsel Abruzzo announced an initiative to seek injunctions under Section 10(j) of the NLRA in matters where employees have been subject to threats or other coercive conduct during an organizing campaign. A copy of the memo is available here: February 1, 2022 GC MEMO.
The NLRB has also announced in its regulatory agenda that it plans to engage in rulemaking on the standard for determining whether two employers are “joint employers” under the NLRA. It is widely expected that the Board will revert to the standard issued during the Obama administration, which does not require the purported joint employer to actually exercise control over employment conditions, as long as the company possesses such authority.
The Protecting the Right To Organize ("PRO") Act
In March of 2021, the House of Representatives passed the PRO Act, which is a wide-sweeping, pro-union piece of legislation that has failed to pick up traction within the Senate—as it was particularly disfavored 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 opt out of a union, prohibits employer participation/campaigning in union elections, and imposes personal liability upon executives and corporate officers for potential violations of employees' rights. The PRO Act would also change the NLRB's election rules and, in the event a collective bargaining agreement is not successfully negotiated by an employer and a union within ninety days of commencing negotiations, provide that a contract may be imposed on the parties by an arbitration panel. Absent a change in the make-up of the Senate (or its filibuster rule), we think it is unlikely the PRO Act in its current form will become law. A copy of the PRO Act is available here: PRO Act Text.
EEOC Plans Are Forthcoming
The EEOC’s current strategic plan was set in 2018 and runs through September 2022. The strategic plan sets the agency’s litigation priorities and other goals, and a new plan is expected in Fall 2022.
For additional information and questions about how these potential changes may affect your business, please contact your Quarles & Brady attorney or: