In the year ahead, a divided Congress will make it more difficult to pass federal legislation, and creates obstacles for the Biden administration to advance its agenda. Businesses will continue to grapple with pandemic-related issues such as long Covid accommodation and leave issues.
But as most mandatory vaccine lawsuits work their way through courts and jurisdictions continue to ease or remove Covid-19-related requirements, the pandemic will likely require less attention.
Notwithstanding such uncertainties, here are some developments we expect to see in workplace safety and health, independent contractor status, and pay equity.
Workplace Safety and Health
The Occupational Safety and Health Administration continues its quest for more rulemaking. OSHA will implement a standard covering Covid-19 in health care, which is now in the final stage of the administrative rulemaking process. However, OSHA will refocus on more traditional safety and health rulemaking.
One such significant revision is to the Electronic Recordkeeping Rule, where OSHA has already proposed amendments. It is likely the final rule will be close, if not identical, to the proposed rule and create a new requirement for establishments with 100 or more employees in certain designated high-hazard industries to annually submit OSHA record-keeping forms.
The current rule requires establishments with more than 250 employees to electronically submit their 300A injuries and illnesses record, which is expected to be eliminated.
We also expect to see significant progress on a heat-related injury and illness rule for indoor/outdoor settings, as OSHA has already published advanced notice of proposed rulemaking on this subject.
Other areas where OSHA has discussed potential rulemaking include lockout-tagout safety procedures, personal protective equipment in construction, and stricter labeling requirements under the hazard communication standard, although it is likely these will require longer time to develop.
Employee or Independent Contractor Classification
The joint employer test continues to be a hot topic. The Department of Labor is currently undertaking rulemaking for employee and independent contractor classifications. The notice proposes to:
- Align the department’s approach with courts’ interpretation of the FLSA and application of the economic reality test
- Restore longstanding multifactor, totality-of-the-circumstances analysis to determine whether a worker is an employee or an independent contractor under the FLSA
- Ensure that all factors are analyzed without assigning any predetermined weight to any particular factor or set of facts
- Return to the longstanding interpretation of factors, including the investment factor, control factor, profit or loss factor, and the integral factor, which considers whether the work is integral to the employer’s business
- Rescind the generally employer-friendly 2021 Independent Contractor Rule, in which two core factors (control over the work and opportunity for profit or loss) carried greater weight in determining the status of independent contractors.
The comment period for the NPRM concluded but we fully expect for it to pass as currently outlined.
Joint employment is another hot topic to which employers should pay attention. This is because it impacts so many employment areas, including wage and hour issues and litigation concerns—particularly with gig economy jobs.
Notably, the number of individuals with gig economy jobs continues to increase each year. Further, given the increase in union membership and union approval in public perception, we expect increased joint employer liability to be highly relevant to union employers.
According to the National Labor Relations Board, “[i]f two entities are joint employers, both must bargain with the union that represents the jointly employed employees, 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 federal government, and many states and localities, continue to focus on pay equity regulations. Many different types of laws have been passed with the aim of attacking pay discrimination or pay gaps, including through pay transparency laws and salary history laws.
For example, Colorado’s 2021 Equal Pay for Equal Work Act established prohibitions on gender-based pay differences. New York City’s new law requires employers there to post minimum and maximum salary information in each “advertisement” for a “job, promotion or transfer opportunity.” And California and Rhode Island have new pay transparency laws in place.
We fully expect this trend to continue into 2023.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Janice Sued Agresti is an associate in Cozen O’Connor’s Labor & Employment Department and represents employers in a wide variety of employment litigation matters.
John S. Ho is co-chair of Cozen O’Connor’s OSHA-Workplace Safety Practice and exclusively represents employers in all labor and employment matters, and regularly handles wage and hour matters involving federal and state laws.