TABLE OF CONTENTS

Coronavirus Resources - NEW

Department of Labor (DOL)
  • Overtime 
  • Joint Employer - Final rule 1/13/2020 - Update 9/2020
  • Persuader Rule - Rescinded 6/27/2018
National Labor Relations Board (NLRB)
  • Ambush, or "Quickie" Elections -Amended 12/13/2019. May 2020 Update
  • Joint Employer
  • Profanity - Decision July 2020
  • Union Dues Checkoff - Reversed, December 2019
  • Micro Unit Organizing - September 2019 Update
  • Investigation Confidentiality - Reversed, December 2019
  • Use of Company Email - Overturned 12/17/19
  • Property Access 
Office of Federal Contract Compliance Programs (OFCCP)
  • February 2018 Audit Directive
  • Proposed Rule to Collect Summary Compensation Data 
  • Sick Leave
U.S. Equal Employment Opportunity Commission (EEOC)
  • Rule on Pay Data Collection Requirements May 2020 Update
Occupational Safety & Health Administration (OSHA) 
  • Tracking of Workplace Injuries & Illnesses
  • Record keeping
  • General Industry Walking-Working Surfaces and Fall Protection Standards
  • FSMA Whistleblower Protections
  • OSHA and union representation of employees during inspections

Please Note: IFDA Legal Counsel Littler Mendelson, P.C. ("Littler") resources provide important insights for IFDA Distributor Members.


Department of Labor (DOL)

Overtime Rule
On September 24, 2019, the Department of Labor published its Final Rule to the white collar overtime exemptions which goes into effect on January 1, 2020. The final rule increases the minimum salary level for exemption to $684 per week, or $35,568 a year. The Department of Labor’s Wage and Hour Division opened an overtime information portal.
Littler Summar

Joint Employer
Update September 2020 - A federal district court judge in Manhattan invalidated much of the Department of Labor’s rule regarding joint employers.  The ruling came in a case brought by 17 states and the District of Columbia against the final rule which defines when an employee can be considered to be jointly employed by multiple companies by agencies such as the Wage and Hour Division.  A news report is available.

January 2020 -The Department of Labor released a final joint employer rule, clarifying the criteria for businesses to be held jointly liable when their franchisees or contractors violate the Fair Labor Standards Act for minimum wage and overtime violations. The final rule uses a four-part test to determine liability:  the power to hire and fire; supervision of schedules; setting pay rates; and maintaining employment records. The National Labor Relations Board is working on a similar rule in regard to unfair labor practices, and the Equal Employment Opportunity Commission is expected to release its own proposed rule covering federal employment discrimination law. Littler Summary

Interpretation of “advice” as it pertains to the employer and labor relations consultant persuader requirements
On June 27, 2018, the Department of Labor announced that it had rescinded the Obama Administration’s March 2016 “persuader” rule.   The persuader rule changed federal disclosure rules to make it more difficult for employers to access legal counsel or other expert advice on labor and employee relations issues, interfering with an employer’s ability to engage in positive, good-faith employee communications about the pros and cons of unionization.  


National Labor Relations Board (NLRB)

NLRB Expedited Union Elections
The NLRB adopted a final rule amending its representation–case procedures to modernize and streamline the process for resolving representation disputes. The "quickie election" rule took effect on April 14, 2015.

On December 13, 2019, the National Labor Relations Board (“Board”) issued a new Final Rule amending its procedures for union elections and scaling back the Obama–era "quickie or ambush election" rules. Littler Summary. 

On May 31, 2020, A federal judge struck down five provisions of the National Labor Relations Board’s election rule that was set to take effect:
  • Reinstitution of pre-election hearings for litigating eligibility issues;
  • Timing of the date of election;
  • Voter list timing;
  • Election observer eligibility; and
  • Timing of Regional Director certification of representatives. 
A short summary of the decision is here. An appeal is expected.
 

Joint Employer
In February 2018, the NRLB vacated a decision overturning the Obama Administration's joint employer rule. The action comes in response to an NLRB Inspector General's report that concluded that Board Member William Emmanuel should have recused himself from the decision due to his previous ties with a law firm involved in a matter related to the case. As a result of the decision, the Obama Board's joint employer policy remains in effect. Under this policy, indirect control of working conditions could be sufficient to create a joint employer relationship. The NLRB asked a federal appeals court in Washington to reopen the case. Legislation to overturn this policy passed the House but has not seen action in the Senate. In May 2018, NLRB Chairman John Ring announced in a letter that the NLRB plans to initiate rulemaking on the joint employment standard as opposed to a case decision. In September 2018, the NLRB issues a proposed rule would return the standard to the direct and immediate control standard that was in place prior to the Board's Browning Ferris decision. 

Profanity
On July 21, 2020, the NLRB issued a decision in General Motors LLC, restoring the balance between Section 7 protected concerted activities and other federal laws prohibiting abusive workplace speech​. Littler summary.

Union Dues Checkoff
In Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center, the NLRB reversed a decision issued during the prior administration, and returned to employers the right to cease contractual dues checkoff obligations after a collective bargaining agreement expires. Littler Summary.   

Micro Unit Organizing
On September 9, 2019, the NLRB issued its decision in The Boeing Company, 368 NLRB No. 67 (2019), clarifying an earlier ruling and reinstating the traditional community of interest standard for bargaining unit determinations. Littler Summary

Investigation Confidentiality
The December 2019 decision in Apogee Retail LLC d/b/a Unique Thrift Store, returned to employers the right to implement and enforce confidentiality rules during investigations of workplace misconduct and held that blanket rules requiring confidentiality during open investigations are presumptively lawful. Littler Summary.

Employee & Non-Employee Access of Email
In 2014 the NLRB ruled in Purple Communications that employees have the right to use an employer-provided email system for non-work-related messages including union communications during non-working time. On December 17, 2019, the Board restored to employers the right to restrict employees from using company email systems for nonbusiness purposes.  The decision, issued in Caesars Entertainment Corp., reverses the 2014 ruling.  Littler Summary.

Property Access
In September, 2019, The NLRB issued a ruling that limits non-employee union representative access to private property. Under the new standard, employers may bar non-employee union representatives from company property so long as they bar other organizations with similar activities to those of the union.  Littler Summary


Office of Federal Contract Compliance Programs (OFCCP)

 The OFCCP Compliance Checks Webpage offers federal contractors a variety of resources that will assist in preparing for and responding to a compliance check review.

OFCCP Audit Directive
In February 2018,  The OFCCP announced a new directive providing that OFCCP will no longer issue final findings of a violation before first issuing a Predetermination Notice (PDN) and considering the contractor’s response.
Counsel Summary

Proposed Rule to Collect Summary Compensation Data from Contractors in New Equal Pay Report
In 2014 the OFCCP announced a Notice of Proposed Rulemaking requiring covered federal contractors and subcontractors with more than 100 employees to submit an annual Equal Pay Report on employee compensation. The NRPM was developed to enable OFCCP to direct its enforcement resources toward those federal contractors and subcontractors whose summary compensation data suggest potential pay violations. IFDA Comments

Sick Leave
The rule requires federal contractors provide covered employees with up to 7 days of paid sick leave annually. The rule affects only contracts solicited by the government beginning on Jan. 1, 2017.
Counsel summary 
Department of Labor Summary


U.S. Equal Employment Opportunity Commission (EEOC)

Pay Data Collection Requirements 
The Equal Employment Opportunity Commission (EEOC) required covered employers to file expanded EEO-1 compensation data for both calendar years 2017 and 2018 by September 30, 2019. Component 2 website.   In September 2019, the EEOC announced that it would not collect expanded employee compensation data, or Component 2 on its Form EEO-1 next year. 

On February 10, 2020, the U.S. District Court for the District of Columbia approved the Equal Employment Opportunity Commission (EEOC)’s request to deem its retrospective collection of compensation data  for calendar years 2017 and 2018 completed. Littler Summary

On May 7, 2020, the EEOC announced that it will not collect Form EEO-1 workplace demographic data for calendar year 2019 this year.  Rather, the agency will collect EEO-1 data for both calendar years 2019 and 2020 next year, with the announced expectation that collection of both years’ data will begin in March 2021.
Littler Summary


Occupational Safety & Health Administration (OSHA)

Tracking of Workplace Injuries & Illnesses
OSHA delayed the part of the reporting rule that would have required employers to electronically submit injury and illness information and enabled the agency to post the information on its website.  Currently, all employers covered by the rule are required to submit their 2017 300A Form electronically by July 1, 2018. In May 2018, OSHA submitted a proposed rule revising the Obama-era regulation,  Improve Tracking of Workplace Injuries and Illnesses.  This is the final internal review by the Office and Management and Budget before the proposal gets published in the next several months. It is anticipated that the proposed regulation will eliminate the requirement that large establishments, those with 250 or more employees, electronically submit  OSHA 300 Log and 301 Forms annually and only be required to submit the 300A Form on an annual basis. 

Recordkeeping Requirements Rule Rescinded
President Trump  signed a Congressional Review Act Resolution of Disapproval to overturn the Occupational Safety and Health Administration’s recordkeeping rule. Known as the Volks rule, the regulation allowed the agency to cite employers for recordkeeping violations for a period of up to five years. The rule was a direct violation of the statutory language of the Occupational Safety and Health (OSH) Act, which only allows citations for issues within a six-month time frame. Under the CRA, agencies will now be prohibited from promulgating a “substantially similar” rule.

General Industry Walking-Working Surfaces and Fall Protection Standards
OSHA updated its general industry Walking-Working Surfaces standards specific to slip, trip, and fall hazards. Effective January 17, 2017, the final rule includes revised and new provisions addressing fixed ladders; fall protection systems and criteria, including personal fall protection systems and their design and performance; as well as training on fall hazards and fall protection systems.

FSMA Whistleblower Interim Final Rule
FSMA contains provisions to protect employees at food firms from retaliation when they raise food safety issues with their employer or the government. Under the new rule, employees are protected from retaliatory action as long as they have a “reasonable belief” that the conduct violates the Food Drug and Cosmetic Act. They would not need to show that a violation actually occurred. The reasonable belief standard is more lenient than many previous whistleblower standards. 

Littler Summary
 

OSHA and union representation of employees during inspections OHSA is no longer insisting it has the right to invite union advocates to inspections of non-union worksites. The policy set in a 2013 interpretation letter from OSHA has been withdrawn and the guidance will be removed from OSHA’s manual on how staff should conduct inspections. 

Littler Summary