What’s On Tap For U.S. Federal Labor Regulations?

Connecting the Dots keeps readers abreast of major U.S. federal employment and labor regulations as they are proposed and finalized. With a very active National Labor Relations Board (NLRB), things already have been quite busy and more new rules are expected to be released in the coming months. Indeed, with power in Congress divided, the Biden administration is likely to rely even more heavily on its power to make policy through regulations.

Here are some rules that are expected to be finalized in 2023:

• U.S. Department of Labor (DOL) Independent Contractor Rule: This regulation adopts a novel “economic realities” test for determining worker status. It is likely to result in the classifying of many more workers as employees and fewer independent contractor classifications. The final rule is expected May 2023. Read more here.
• NLRB Joint Employer Rule: This rule will expand the definition of joint employment to include employers that exercise reserved or indirect control over the terms and conditions of employment. Where two entities are deemed joint employers, both must bargain with the union that represents the jointly employed workers, both are potentially liable for unfair labor practices committed by the other, and both are subject to union picketing or other economic pressure if there is a labor dispute. The rule expected to be released in August 2023. Read more here.
• Occupational Safety and Health Administration (OSHA) Recordkeeping Rule: This rule will require employers who have 100 or more employees to submit detailed injury and illness records electronically to be published on a public website. This final rule expected is expected in March 2023. Read more here.

In addition to finalizing those regulations, the Biden administration is expected to propose the following rules:

• DOL/OSHA Worker Walkaround Representative Rule: This rule is expected to clarify that a worker or union representative, even if not an employee, can accompany an OSHA inspector during an inspection of the workplace if the inspector deems “such person is reasonably necessary to conduct an effective and thorough physical inspection.” The draft rule is expected to come out in May 2023.
• DOL Overtime Rule Update: This rule is expected to expand the overtime exemption for certain “white collar” salaried employees by increasing salary level thresholds and expanding the definition of employees who are eligible for overtime pay under the Fair Labor Standards Act. The draft rule is expected to come out in May 2023.
• OSHA Infectious Diseases Rule: This rule is expected to mandate specific safety controls and requirements in the face of various infectious diseases. The draft rule is expected to come out in September 2023.