This week’s post is somewhat breathless because so much happened or is about to happen. You may have thought the government has been closed for the past 35 days. But just like great magicians who get you to watch their right hand while their left hand is going about the business of the trick, the parts of the federal government and their state counterparts which were opened continued at a breakneck pace.
On the federal level, the National Labor Relations Board continued issuing decisions rolling back Obama-era workplace protections.
Last Friday, in SuperShuttle DFW, Inc. , 367 NLRB No. 75 (Jan. 25, 2019), the NLRB overruled the Obama-NLRB’s interpretation of the independent contractor test, stating it was returning to a more balanced approach to decide when individuals were acting as employees (who are protected under the law and can unionize) as opposed to independent contractors (who are not protected by the law and cannot unionize). Given the rapid growth in the “gig” workforce, the NLRB’s decision will not be the last voice to weigh in on the issue.
This followed closely on the heels of the decision in Alstate Maintenance, LLC, 367 NLRB No. 68 (Jan. 11, 2019), where the NLRB modified the test for determining when an employee engages in “concerted protected activity.” The NLRB has long held that employees are protected when they engage in “group action,” even if they are not seeking union representation. In Alstate, the Board found that the employer did not violate the law by firing a group of baggage handlers who walked off the job after one of them complained that “we” had not received sufficient tips previously. Finding that use of the word “we” followed by a common act may not be evidence of “concerted” activity, the Board held that the employer could lawfully discharge the workers for leaving their posts.
Legal changes were not restricted to the federal level. The New York City Council amended the New York City Human Rights Law to prohibit discrimination on the basis of sexual and reproductive health decisions. These now-protected decisions include fertility-related medical procedures, HIV testing and counseling, emergency contraception, abortion procedures, and sterilization procedures, among others.
In Albany, Governor Andrew Cuomo announced that he will seek to increase penalties for wage theft in his 2020 budget submission.
In Hartford, the state legislature convened and a host of employment-related proposals were introduced, including paid family leave, increasing the minimum wage, and prohibiting confidentiality agreements in sexual harassment settlements.
At this pace, all manufacturers will have to keep an eye out for big changes coming to your workplace.