President Joseph Biden has signed the Speak Out Act and the Respect for Marriage Act. The comment period for the Department of Labor’s independent contractor proposed rule ended earlier this month while the comment period on the proposed joint employment rule issued by the National Labor Relations Board (NLRB) ends on December 21^st and the NLRB has extended until February 2, 2023, the comment period on the proposed rule concerning election-blocking charges and voluntary recognition of unions. The Department of Labor has found numerous Fair Labor Standards Act (FLSA) violations in the care industry as a result of a recent initiative designed to improve compliance.

President Signs Speak Out Act – President Joseph Biden signed the Speak Out Act (S. 4524) which would make pre-dispute nondisclosure and non-disparagement clauses concerning sexual assault and sexual harassment unenforceable. The law became effective upon its signing by President Biden on December 7^th and applies to any claims filed on or after the date of enactment. The bill had bipartisan congressional support, passing the Senate by unanimous consent and by a vote of 315 – 109 in the House of Representatives. Earlier this year, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which invalidated mandatory arbitration agreements in these cases.

Respect for Marriage Bill Signed – President Joseph Biden signed the Respect for Marriage Law (H.R. 8404) which allows same-sex and interracial marriage. When signing the law, President Biden stated, “the law requires that interracial marriages and same-sex marriage must be recognized as legal in every state in the nation.” The law prohibits states from refusing to recognize marriages from other states on the basis of sex, race, ethnicity, or national origin. The law provides that the federal government will recognize marriages that are valid under the law in the state where the marriage occurred. The law will ensure that same-sex couples can continue to obtain employment benefits. The law repeals the Defense of Marriage Act that defined marriage as between one man and one woman.

Regulatory Update – The comment period for the Department of Labor’s (DOL) proposed rule on independent contractors ended on December 13^th. A total of 55,220 comments were submitted by the deadline. The DOL needs to review the comments and finalize the regulation. When the proposed rule was published, DOL advised that it was designed to help employers classify workers and to address misclassification that occurs when workers are considered independent contractors rather than employees under the Fair Labor Standards Act (FLSA). 

The comment period for the proposed joint employment rule issued by the National Labor Relations Board (NLRB) ends on December 21^st. According to the NLRB, “the proposed rule reflects the Board's preliminary view … that the Act's purposes of promoting collective bargaining and stabilizing labor relations are best served when two or more statutory employers that each possess some authority to control or exercise the power to control employees' essential terms and conditions of employment are parties to bargaining over those employees' working conditions.” 

The National Labor Relations Board (NLRB) has extended the deadline for comments on its proposed rule concerning election-blocking charges and voluntary recognition of unions. Comments, which originally were due on January 3, 2023, are now due on February 2, 2023. The proposed rule would rescind a rule adopted by the NLRB on April 1, 2020. According to the NLRB, the rule that is now in effect allows representation elections to proceed despite pending unfair labor practice charges alleging coercive conduct that would interfere with employee free choice and potentially require the election to be re-run. The NLRB stated that the proposed rule would allow a Regional Director to delay a union election if “the conduct alleged threatens to interfere with employee free choice.” The NLRB believes that this would avoid conducting elections that might have to be re-run.

DOL Investigations Finds Violations in Care Industry – The U.S. Department of Labor (DOL) has reported that since its 2021 launch designed to improve compliance by residential care, nursing facilities, home health services and other care-focused industry employers, more than 1,600 investigations undertaken by the Wage and Hour Division identified Fair Labor Standards Act (FLSA) violations in 80% of its reviews. The investigations, which were part of the Care Workers Initiative resulted in the recovery of over $28 million in back wages and damages for nearly 25,000 workers, and the assessment of almost $1.3 million in civil monetary penalties against employers for willful violation of federal law. The most common violations found by investigators were failure to pay overtime, minimum wage, or misclassifying employees as independent contractors. As part of this initiative, the Wage and Hour Division also is conducting outreach programs to educate both workers and employers about their rights and responsibilities under federal law and how to report and avoid violations.

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.