Stacey L. Smiricky, Author at Laborsphere

New Proposed Rule on Independent Contractors: DOL’s Latest Plan for Overhaul of the Existing Standard

On October 11, 2022, the U.S. Department of Labor (DOL) issued a new proposed rule that is more aligned with judicial precedent than a previous proposal regarding whether a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The proposed rule would rescind the Independent Contractor Rule (2021 IC Rule) promulgated by the Trump administration on January 5, 2021, which has been criticized by some for making it easier for businesses to classify workers as independent contractors.

This is the DOL’s second attempt to rescind the 2021 IC Rule, after a Texas federal court ruled that the DOL’s first revision failed on procedural grounds. The DOL’s latest proposal may also face legal challenges when it is made final. The proposal is subject to a 45-day comment period beginning October 13, 2022, the date of publication in the Federal Register.

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Supreme Court Blocks OSHA Vaccination-or-Test Mandate and Upholds CMS Rule Mandating Vaccines – Now What?

On January 13, 2022, the U.S. Supreme Court issued two significant opinions:

In Nat’l Fed. of Independent Business v. Occupational Safety and Health Administration, the Supreme Court stayed enforcement of the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) related to COVID-19 prevention measures, holding that the groups and businesses challenging the standard were likely to succeed in showing that the ETS requirements exceeded OSHA’s statutory authority.
In Biden v. Missouri, the Supreme Court lifted the stay of the Centers for Medicare and Medicaid Services Interim Final Rule (the CMS Rule) for health facilities that receive Medicare or Medicaid reimbursement, holding that the Secretary had statutory authority to issue the mandate.

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Here We Go (Again): OSHA Emergency Temporary Standard Reinstated (Vaccine Mandates, Testing & Face Coverings for Large Employers)

The Occupational Safety and Health Administration (OSHA) on November 4, 2021, issued its Emergency Temporary Standard (ETS), requiring all employers with 100 or more employees to choose between (1) implementing a mandatory COVID-19 vaccine policy, and (2) requiring face coverings and weekly testing for the nonvaccinated. That order was to go into effect on December 6, 2021, requiring the development of a policy and gathering proofs of vaccinations by that date, with the testing part taking effect on January 4, 2022. The U.S. Court of Appeals for the Fifth Circuit on November 12 enjoined the ETS from taking effect; and following that order, OSHA stood down on enforcing the ETS. Much litigation followed, with a national consolidation of related cases shifted to the Sixth Circuit Court of Appeals; and that court on December 17 dissolved the order of the Fifth Circuit, reinstating the ETS.

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Delayed Gratification: Starting June 2022, Illinois Health Care Right of Conscience Act Does Not Apply to COVID-19 Measures or Requirements

Beginning in June 2022, the Illinois Health Care Right of Conscience Act will not apply to COVID-19 measures or requirements. The Illinois legislature’s thoughts behind the amendment to the law is that employers will be able to more easily enforce COVID-related rules and policies.

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Amendments to the Illinois Freedom to Work Act: Significant Changes Coming to Illinois Noncompete and Nonsolicitation Agreements

While restrictive covenants abound in the employment landscape, the Illinois legislature is shoring up efforts to rein in the use of such agreements. The latest push? A bill to amend the Illinois Freedom to Work Act to expand the ban on noncompetes to a larger population of workers and provide certain rights to employees who are asked to sign noncompete and nonsolicitation agreements as a condition of employment. With Gov. J.B. Pritzker poised to sign that bill, employers should begin evaluating how those amendments will impact their use of noncompete and nonsolicitation agreements and what changes will be necessary to comply with the new law.

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Illinois Employers: Prepare to Comply With Significant Amendments to Three Key Employment Laws

On March 23, 2021, Illinois Gov. J.B. Pritzker signed Public Act 101-0656 into law, amending the Illinois Human Rights Act (IHRA), the Business Corporation Act of 1983 and the Equal Pay Act of 2003 in ways that will significantly affect employers. Here’s an overview of what’s coming.

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