The Prime Non-COVID Office Legislation Tales You Might Have Missed: Might 2020 | Fisher Phillips

By Jason Wilson On Dec 11, 2020

While you’ve mainly focused on COVID-19-related issues over the past few months, that doesn’t mean the world of labor and labor law has taken a break. While the pace of new developments has slowed down a bit, there are still labor law updates you need to be aware of. Want to read about news unrelated to face masks, reopening your business, or contact tracking? Here is a recap of the top stories you may have missed over the past month.

The federal court blocks the union’s new electoral rules – On the eve of its scheduled implementation date, a federal judge in Washington, DC, crushed substantial parts of the National Labor Relations Board’s new union representation procedures and gave a significant victory to unions trying to maintain current “quickie” voting rules. While the brief written decision, issued late May 30, contains few details (but promises to be a full statement), it appears that contested aspects of the new rule have been overridden for failure to comply with the notice and comment requirements , which are laid down in the Administrative Procedure Act (APA). However, the court did not overturn all of the union election rules, comply with some of them and send them back to the agency for further consideration in the light of their other decisions. This includes a section with rules that extend a collection of election deadlines for unions. What do employers need to know about this development?
Employers will receive EEO-1 reporting in 2020 – Employers across the country got some good news on May 7th when the federal government announced that the reporting process for EEO-1 would be delayed by a year, with the next reporting deadline being pushed back to March 2021. You will now be temporarily spared the submission of the annual EEO-1 report, which requires companies to provide employment data related to race, ethnicity, gender and occupation. In particular, your 2019 EEO-1 reports, which are expected to be due by March 31, 2020 (but employers were unable to submit because the portal was not available), are now officially postponed. What do you need to know about this welcome development?
The NLRB adheres to the rule to ban cell phones in work areas – but does the decision help your organization? The National Labor Relations Board found that a beverage company’s rule prohibiting cell phones in the workshop and workplaces does not violate the National Labor Relations Act. The Board’s May 20 decision recognized that this rule would potentially affect employees’ ability to make calls or record workplace problems. All things considered, however, they found that such a violation was outweighed by the company’s legitimate business justifications for the policy. The decision may be of great benefit to manufacturers, but only to the extent that they can provide sufficient safety or business-related justifications for banning personal cell phones in the workplace.
The Labor Board is temporarily changing the requirements for the notice – The National Labor Relations Board normally requires employers to post on their premises notices of the Board’s findings against them within 14 days. However, the NLRB has temporarily changed this default rule to accommodate the changing environment. In particular, the Board of Directors recently decided that employers whose facilities are currently closed but who have been asked to publish a notice of breaches of federal labor law must wait for their offices to reopen.
EEOC supports employers’ use of the job opportunity tax credit – The Equal Employment Opportunity Commission recently announced plans to issue their first formal letter of opinion in over 30 years confirming that employers can use the Work Opportunity Tax Credit (WOTC) for hiring people with disabilities, veterans and other under-represented workers without breaking federal law -Discrimination Laws. The agency would like more employers to use the so-called “heavily underutilized” tax credit. In an important step in support of this goal, the EEOC voted 2: 1 to deliver an opinion letter formalizing its view that the laws it was enforcing did not prevent the use of the credit. What do employers need to know about this development?
“Bonus Material” – A deeper dive into the final US Department of Labor regulations on the fluctuating work week – Finally, the U.S. Department of Labor’s final regulations on the Fluctuating Workweek (FWW) payment method expressly states that you can pay an employee using the FWW method and still pay a bonus, commission, etc. However, some of the stated requirements have been met. Leave areas open for further discussion by previous administrations and courts.
Massachusetts is again proposing changes to the rules for family paid and medical leave The Massachusetts Department of Family and Sick Leave (DFML) recently released proposed amendments to the Commonwealth’s Paid Family and Sick Leave Regulations, which is another proposed change to the state’s paid leave program, which is expected to begin in January 2021 . According to DFML’s regulations, the aim is to clarify procedures, practices and guidelines in the management and enforcement of the Vacation Act. While the hearings are not scheduled yet, due to the social distancing requirements and the current state of emergency, they will likely be held via videoconference. Employers should examine carefully as changes are likely to affect them and their employees.
Ban The Box goes into effect in Suffolk County – Suffolk County, New York, will soon follow other state and local governments as they have enacted boxing prohibition that focuses on qualifying a candidate for a position before considering the candidate’s possible conviction history. Suffolk County’s legislature recently passed law banning employers from asking applicants about their criminal history in job applications effective August 25, 2020.
Off-Duty Facebook Post Reasons for Dismissing a Public Employee, Pennsylvania Supreme Court Rules – (Public) employers are happy! In a unanimous decision, the Pennsylvania Supreme Court only ruled that PennDOT did not violate an ex-employee’s freedom of speech by firing her over a Facebook rant in which the ex-employee said she “has no flying problem these babies and [] will happily hit a school bus. “This case was designed to serve as a beacon for public employers in Pennsylvania, navigating the often murky waters of employee social media use.
CCPA 2.0 Could Be On The Way To The California Vote In November 2020: What Employers Need To Know – In 2018, California lawmakers enacted the California Consumer Protection Act, which went into effect January 1, 2020 but was amended six times before it even went into effect. CCPA advocates are concerned that changes have weakened the CCPA and consumers still don’t understand how their personal information is used by businesses, and have an election initiative for the November 2020 election titled the California Privacy Rights Act of 2020 ( “CPRA”) proposed. ) – colloquially known as CCPA 2.0. The CPRA currently has 930,000 signatures that are pending verification of the signature. The California Secretary of State must confirm 623,212 valid signatures for the initiative to qualify for the November 2020 vote. The CPRA can still be circulated for additional signatures until June 15, 2020. While a limited sample of signatures so far shows that only 75% of the signatures are actually valid, that percentage would still be enough to hit the threshold to get the CPRA for the fall election.
FLSA Commissioned-Employee 7 (i) Exemption – USDOL clarifications go straight to the final – The USDOL wages and hours department started the week with an all-in-one maneuver. About a year ago, the FLSA’s 7 (i) overtime waiver was on the regulatory agenda. Without further notice, the USDOL suddenly responded to this point and cleverly responded to decades of confusion about which companies employees could meet this exception – without revising its position on the actual analysis.
The Massachusetts court has bad “Prong B” news for gig companies – A federal judge in Massachusetts just denied Lyft’s attempt to outrun Prong B’s ABC test range, indicating that it is “likely” that his ridesharing facilities are employees, not independent contractors. The news wasn’t great for Lyft, but more importantly, the May 22nd decision isn’t good for gig economy companies trying to fit their traditional business model into the tight confines of the ABC test. For those operating in states where the test is used to resolve misclassification conflicts – we see you, California – this development is not the best news and is well worth tracking.
New York employers must adhere to the updated pay notice requirements – New York businesses that employ domestic workers or employees covered by applicable state wage laws must prepare to comply with changes to state wage reporting laws. As part of the state budget, the legislature has amended the Wage Theft Prevention Act (WTPA) to introduce new requirements for the wage notices and pay slips that these employers must present to their employees. Affected companies need to be aware of the changes and take action to meet new obligations.