On March 30, 2022, a panel in the Third Circuit Court of Appeals overruled nearly 30-year-old precedent and held that arbitration provisions do not survive the expiration of a collective bargaining agreement (CBA) in Pittsburgh Mailers Union Local 22 v. PG Publishing Co. The previous rule, first articulated in Luden’s Inc. v. Local No. 6 Union of the Bakery, Confectionary & Tobacco Workers International Union, 28 F.3d 347 (3d Cir. 1994), was premised on the idea that where an employer and a union agree to maintain certain terms and conditions of employment after the expiration of a CBA, a “new implied-in-fact-CBA” is formed that implicitly incorporates the expired CBA’s dispute resolution mechanisms. The only exceptions were situations where both parties intended the arbitration clause to expire with the contract or where one party, under the totality of the circumstances “objectively manifest[ed] to the other a particularized intent . . . to disavow or repudiate that term.” These exceptions were exceedingly narrow.
In the midst of changing mask requirements and many people believing that the pandemic is now “over,” the City of Philadelphia has enacted a new COVID-19 sick leave law. On March 9, 2022, Mayor Kenney signed into law an amended version of the 2021 Public Health Emergency Leave Ordinance (the “Ordinance”) requiring covered employers to provide paid sick leave for employees who test positive for COVID-19. This law will stay in effect until December 31, 2023.
On February 10, 2022, the National Labor Relation Board’s (NLRB) General Counsel, Jennifer Abruzzo, issued Memorandum GC 22-03 announcing her agreement with and support of the Biden administration’s Task Force on Worker Organizing and Empowerment (Task Force) February 7, 2022 report. The Task Force was created by executive order in April 2021 to identify ways the executive branch can promote worker organization and collective bargaining through existing policies and programs. The Task Force’s report included recommendations to increase organizing and encourages collaboration between government agencies focused on worker protection. In addition to instructing field offices to adopt the recommendations outlined in the report, Abruzzo’s memorandum details current interagency undertakings and outlines future efforts to strengthen those collaborations.
As non-competition laws and the scrutiny of non-compete agreements continue to be in the spotlight, several states are revisiting their non-compete laws. Colorado has been in the spotlight after the Colorado Legislature passed S.B. 21-271 on July 6, 2021 in an effort to reform the sentencing provisions related to numerous petty offenses and misdemeanors. As a result, several Colorado laws related to labor and employment are affected, including Colorado’s statute addressing restrictive covenant agreements, C.R.S. § 8-2-113.
Under C.R.S. § 8-2-113, it is unlawful to: intimidate workers in order to limit their ability to engage in lawful work; and enter into covenants that restrict trade, such as non-compete and non-solicitation agreements, unless the covenants fit within limited exceptions provided under the statute. The penalty if convicted for violating the non-compete statute is currently a misdemeanor punishable by a fine between $10–$250, or jail time of not more than 60 days, or both. C.R.S. § 8-2-115. Effective March 1, 2022, the penalty for violating the non-compete statute will be increased to a class 2 misdemeanor punishable by up to 120 days in jail, or a fine of up to $750, or both, as a result of the changes from S.B. 21-271. S.B. 21-271 also amends the text of C.R.S. § 8-2-113 to include the increased penalty as a new subsection (4).
On February 9, 2022, California Gov. Gavin Newsom signed Senate Bill 114, which provides COVID-19 supplemental paid sick leave (SPSL) for covered employees who are unable to work or telework due to COVID-19 related reasons from January 1, 2022 through September 30, 2022. SB 114 is nearly identical to Assembly Bill 84 (AB) which was passed by the California Legislature on February 7, 2022. SB 114 takes effect on February 19, 2022, (10 days after the bill is signed by Gov. Newsom) and adds Sections 248.6 and 248.7 to the California Labor Code.
Among other things, SB 114:
- Applies to employers with more than 25 employees.
- Establishes a new bank of COVID-19 related SPSL.
- Broadens the reasons employees can take COVID-19 SPSL
- Permits employers to request proof of a positive COVID-19 test as to the employee or the employee’s family member.
- Requires retroactive payment if an employee would have been eligible for SPSL since January 1, 2022.
- Will remain in effect until September 30, 2022.
On Friday, February 4, 2022 President Joe Biden signed Executive Order 14063, requiring project labor agreements (PLA) for all federal construction projects costing more than $35 million. PLAs are agreements between contractors and one or more labor organizations that establish the terms and conditions of employment, such as wage rates and benefits, for specific construction projects. Because of their project-based specificity, the terms and conditions of a PLA often (depending upon the PLA’s terms) supersede the provisions of an existing, but more geographically generalized, area collective bargaining agreements (CBA).
The order takes effect immediately and will apply to many of the projects funded by the recent infrastructure bill.