The only constant is change!
In 2023, we saw several developments in labor and employment law, including federal and state court decisions, regulations, and administrative agency guidance decided, enacted, or issued. This article will summarize the updated rules and guidance issued by the Department of Labor ("DOL"), the National Labor Relations Board ("NLRB"), and the Occupational Safety and Health Administration ("OSHA"), which will or may be enacted in 2024.
NLRB's Joint-Employer Standard-
The NLRB has revamped its joint-employer standard under the National Labor Relations Act ("NLRA"). The NLRB replaced the 2020 standard for determining joint-employer status under the NLRA with a new rule that will likely lead to more joint-employer findings. Under the new standard, two or more entities may be considered joint employers of a group of employees if each entity: (1) has an employment relationship with the employees and (2) has the authority to control one or more of the employees' essential terms and conditions of employment. The NLRB has defined "essential terms and conditions of employment" as:
- Wages, benefits, and other compensation;
- Hours of work and scheduling;
- The assignment of duties to be performed;
- The supervision of the performance of duties;
- Work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline;
- The tenure of employment, including hiring and discharge; and
- Working conditions related to the safety and health of employees.
The new rule further clarifies that joint-employer status can be based on indirect control or reserved control that has never been exercised. This is a major departure from the 2020 rule, which required that joint employers have "substantial direct and immediate control" over essential terms and conditions of employment.
The new standard will take effect on February 26, 2024, and will not apply to cases filed before the effective date.
OSHA's Final Rule on Workplace Injury and Illness Reporting Requirements (29 CFR 1904)
The final rule takes effect on Jan. 1, 2024, and now includes the following submission requirements:
- Establishments with 100 or more employees in certain high-hazard industries must electronically submit information from their Form 300-Log of Work-Related Injuries and Illnesses, and Form 301-Injury and Illness Incident Report to OSHA once a year. These submissions are in addition to submission of Form 300A-Summary of Work-Related Injuries and Illnesses.
- To improve data quality, establishments are required to include their legal company name when making electronic submissions to OSHA from their injury and illness records.
OSHA will publish some of the data collected on its website to allow employers, employees, potential employees, employee representatives, current and potential customers, researchers and the general public to use information about a company's workplace safety and health record to make informed decisions. OSHA believes that providing public access to the data will ultimately reduce occupational injuries and illnesses.
The final rule retains the current requirements for electronic submission of information from Form 300A from establishments with 20-249 employees in certain high-hazard industries and from establishments with 250 or more employees in industries that must routinely keep OSHA injury and illness records.
New Labor and Employment Rules for 2024 (natlawreview.com)
Employment Law Update 2024: New Employment Laws for the New Year | Littler Mendelson P.C.
Employee or Independent Contractor Classification Under the Fair Labor Standards Act
Commentary by: Raylea Stelmach
Edited by: Kim Moss
EPSHRM provides content as a service to its readers and members. It does not offer legal advice, and cannot guarantee the accuracy or suitability of its content for a particular purpose.
