A U.S. District Court has blocked the joint employer rule issued by the National Labor Relations Board (NLRB) that was scheduled to take effect on March 11th. The Equal Employment Opportunity Commission has issued performance results for the previous fiscal year that ended on September 30, 2023. A Congressional Review Act resolution was introduced in both Houses of Congress to overturn the independent contractor rule issued by the Department of Labor (DOL) that became effective on March 11th. President Biden has issued an Executive Order designed to increase the use of registered apprenticeship programs in the federal government and by those who receive federal grants and contracts.
NLRB Joint Employer Rule Blocked – The U.S. District Court for the Eastern District of Texas has blocked the joint employer rule issued by the National Labor Relations Board (NLRB). In vacating the rule, the District Court judge in the case of Chamber of Commerce of the United States v. National Labor Relations Board concluded that enforcement of the rule would be contrary to law and the rule was “arbitrary and capricious.” In announcing that the NLRB is reviewing the decision and considering next steps in the case, NLRB chair Lauren McFerran stated, “The District Court’s decision to vacate the Board’s rule is a disappointing setback but is not the last word on our efforts to return our joint-employer standard to the common law principles that have been endorsed by other courts.”
EEOC Releases Performance Data – The Equal Employment Opportunity Commission (EEOC) reported its performance results during fiscal year (FY) 2023, which ran from October 1, 2022 – September 30, 2023. The EEOC recovered $665 million for victims of discrimination, which is a 29.5% increase over the previous fiscal year. The EEOC noted that it received 81,055 new discrimination charges, 233,704 inquiries in field offices, more than 522,000 calls from the public through the agency contact center, and over 86,000 emails. In addition, the EEOC filed 143 new lawsuits. EEOC Chair Charlotte Burrows stated, “For nearly six decades, the EEOC has been entrusted with the clear mission of preventing and remedying discrimination in our nation's workplaces. That legacy and our ongoing work are vitally important as we rebuild the economy to work for everyone and fulfill our nation's promise of equal justice for all.”
Resolution Introduced Overturning Independent Contractor Rule – A Congressional Review Act resolution was introduced (S.J. Res. 63, H.J. Res. 116 ) to overturn the independent contractor rule issued by the Department of Labor (DOL) that became final on March 11th. The primary sponsors are Senator Bill Cassidy (R-LA), ranking Republican on the Senate Committee on Health, Education, Labor and Pensions and Representative Kevin Kiley (R-CA), chairman of the Workforce Protections Subcommittee of the House Committee on Education and the Workforce. There are numerous Senate and House cosponsors.
Under the Congressional Review Act, Congress has 60 days from the day in which it receives the rule to introduce a resolution of disapproval. If approved by both the Senate and House of Representatives, the president can either sign it or veto it and if vetoed, it requires a two-thirds vote in each chamber to override a veto. There is also litigation pending challenging the independent contractor rule.
The DOL rule revises how to determine whether an individual is an employee or independent contractor under the Fair Labor Standards Act (FLSA). The final rule rescinds a previous independent contractor rule that was issued on January 7, 2021. The final rule provides that workers would not be considered as independent contractors if they are, as a matter of economic reality, economically dependent on an employer for work. The final rule identifies six factors that should be used to determine employee or independent contractor status under the FLSA.
Executive Order Expands Use of Registered Apprenticeship Programs – President Biden issued an Executive Order designed to increase the use of registered apprenticeship programs in the federal government and to encourage federal agencies to provide preferences on projects to recipients that hire individuals who have participated in registered apprenticeship programs. The Executive Order states, “Since taking office, the Biden-Harris Administration has invested more than $440 million to expand the capacity of the Registered Apprenticeship system, supporting the education and training needs of more than 1 million apprentices across the country.”
The Executive Order directs the Office of Personnel Management, Department of Labor and other federal agencies to develop ways in which pathways can be established to federal government employment of those who have completed registered apprenticeship programs. Federal agencies need to identify where they could include requirements or incentives for grant recipients or contractors to hire workers who participated in registered apprenticeship programs. The Executive Order also reestablishes labor management forums in the federal government that are designed for unions and management to work together to improve their workplaces.
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 was an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.