Cloudy With a Chance of Legislation

According to The Old Farmer’s Almanac, we are currently in the “Dog Days” of summer, which began just before the July 4th holiday and lasts through August 11th each year. The Almanac describes this period as usually the hottest and most unbearable days of the season. This seems an apt description of the legislative and government rule-making we’ve experienced this year.

It’s been an active season. A quick count of the state legislation enacted in just the second quarter of 2023 indicates employers have been “showered” with almost 50 new laws that employers must incorporate into their multi-state operations. We’ve also seen significant changes at the federal level. For example, the United States Citizenship and Immigration Service (USCIS) issued a revised Form I-9 and is allowing, under specific circumstances, the continued remote document review process. The Equal Employment Opportunity Commission (EEOC) announced new guidance related to several topics, and the General Counsel of the National Labor Relations Board (NLRB) is pushing an employee-friendly agenda. I don’t know about you, but I feel more than a little “foggy” amidst all these changes.

The NLRB has broad authority to interpret the application of the National Labor Relations Act (NLRA). They raised a “storm” by interpreting that non-compete agreements violated employees’ Section 7 rights. Recent rulings related to work rules that limit an employer’s ability to hold accountable employees who engage in the use of profane language–even if it is racist or sexist–if it is associated with concerted, protected activity could easily result in a “storm” of unfair labor practice claims.

Employers must take “lightning” action to stay current with all these changes. Policy and handbook revisions and staff training are all in the “forecast.” We still await the Department of Labor’s changes to minimum wage and the FLSA (coming soon!).

Let’s hope that following that, the “clouds” of constant legislative changes will resolve and offer a “rainbow” of hope for a quiet year-end!