On October 31, 2022, the General Counsel for the National Labor Relations Board (NLRB), Jennifer Abruzzo, issued a memorandum instructing regional offices to closely scrutinize employer use of certain electronic monitoring, data collection and automated management technologies. This memorandum further evidences the NLRB’s commitment to effectuating a strong national labor policy which includes protecting employees’ organizational rights and encouraging collective bargaining as described in our November 2020 client alert. Abruzzo reiterated these policy objectives in her February 2022 memorandum issued in support of the Biden administration’s Task Force on Worker Organizing and Empowerment’s February 2022 labor report.
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.
On September 15, 2022, railroad companies and unions representing railway workers reached a tentative agreement to potentially prevent a strike that would have caused significant harm to the American supply chain and economy. While the unions’ membership must still ratify the agreement, the unions agreed not to strike during that process. Ratification votes will occur over the next 45 to 60 days. If any union does not ratify the agreement, then it may have the right to strike.
On September 6, 2022, a split National Labor Relations Board (NLRB or the Board) released its long-anticipated Notice of Proposed Rulemaking that would lessen the burden in proving that two companies jointly employ workers under the National Labor Relations Act (NLRA). This proposed standard, in effect, would increase the scope of joint employment relationships to include indirect and unexercised control over the essential terms and conditions of a job. In contrast, the prior standard — adopted in April 2020 by a Republican-majority Board — required that an employer have direct and immediate control over these essential terms and conditions. Moreover, the putative joint employer had to actually exercise that control. Before that, in 2015, a Democrat-majority Board issued a decision holding that a company need only hold indirect control over the terms and conditions of employment to be considered a joint employer.
On July 13, 2022, Maryland’s Court of Appeals, the state’s highest court, held that state wage law claims for certain travel pay survive summary judgment despite the fact that such payments are not required under the federal Portal-To-Portal Act (PPA or the Act). The Court of Appeals interprets Maryland law as requiring wage payments for time spent waiting and traveling to a worksite if the waiting site is considered a prescribed workplace.
On August 29, the National Labor Relations Board (NLRB or the Board) overturned a 2019 decision concerning the lawfulness of employer-promulgated dress codes and workplace apparel policies. In Tesla, Inc., the Board majority held that a workplace rule or policy that limits an employee’s ability to wear union insignia and logos is presumptively unlawful unless the employer can show that special circumstances exist to justify such a rule.