Beltway Buzz – Ogletree Deakins
DOL Extends IC Proposal Comment Period. On October 25, 2022, the U.S. Department of Labor’s (DOL) Wage and Hour Division announced an extension of the public comment period for its proposal to amend the independent contractor (IC) regulations under the Fair Labor Standards Act. Comments were originally due by November 28, 2022, which is the Monday following the Thanksgiving holiday weekend. Interested stakeholders now have an additional fifteen days—until December 13, 2022—to submit comments. Buzz readers may recall that a federal judge ruled that the DOL’s previous attempt to reverse the Trump-era independent contractor rule was improper, in part, because the agency did not provide a meaningful opportunity for the public to comment on its proposal.
NLRB to Pursue Interim Relief. National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo continues to fine-tune the agency’s use of injunctions under Section 10(j) of the National Labor Relations Act. On October 20, 2022, Abruzzo issued a memorandum encouraging NLRB regional directors to attempt to obtain interim relief while a 10(j) case continues to unfold. According to the memo, “if efforts to settle the entire administrative case are unsuccessful, charged parties will be given the opportunity to voluntarily agree to an interim settlement that includes remedies, such as reinstating alleged discriminatees or agreeing to bargain, pending final resolution of the administrative case by the Board.”
Out With the Old, in With the New (Employee Rights Poster). The U.S. Equal Employment Opportunity Commission (EEOC) has made changes to its required workplace poster, now entitled “Know Your Rights: Workplace Discrimination is Illegal.” Dee Anna D. Hays and Zachary V. Zagger have an analysis of the changes, which include the addition of easier-to-understand language, a QR code that helps employees file EEOC charges, and a clarification that it is unlawful to discriminate on the basis of pregnancy and related conditions, sexual orientation, or gender identity. Importantly, the EEOC made revisions to the poster the day after the initial announcement, so employers may want to confirm that they have the most current version. According to the agency’s frequently asked questions (FAQs) guidance, there is no specific deadline by which employers need to replace the previous “EEO is the Law” poster with the updated “Know Your Rights” poster—only that the swap-out must happen “within a reasonable amount of time.”
Second Union Rejects Freight Rail Deal. There was more news this week concerning the ongoing labor dispute between freight rail carriers and the unions that represent their employees. The tentative agreement negotiated in mid-September between the carriers and union leaders suffered an initial blow when one of the unions voted down the deal. This week, the Brotherhood of Railway Signalmen became the second union to reject the deal. Four more unions will vote in the coming weeks, with the last vote currently scheduled to occur on the Monday before Thanksgiving, when the holiday shopping season really kicks into high gear. While there is still time to avoid a national freight rail strike in the midst of the holiday season, these setbacks are not putting anybody at ease.