Category: unionization

  • HR and the Courts — May 2024 – CUPA-HR

    HR and the Courts — May 2024 – CUPA-HR

    by CUPA-HR | May 14, 2024

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Unions Representing Student Employees File Unfair Labor Practice Charges Related to Student Protests

    Nearly 30 unions representing more than 100,000 student workers at 58 campuses throughout the country have issued a joint letter supporting protesting students and condemning violent responses to peaceful protests. Unfair labor practice charges have also been filed with the National Labor Relations Board against a small number of private institutions in protest of schools’ enforcement of their rules.

    The NLRB has found in the past that civil rights protests — for example, those connected to the Black Lives Matter movement — are protected concerted activity when they are tied to protesting employer or employment discrimination matters. However, commentators have drawn a distinction related to the Israel-Hamas war protests. While each unfair labor practice case will rise and fall on the specific facts related to the situation, a university enforcing safety rules and cracking down on protests will likely not violate the National Labor Relations Act. Additionally, if a union member participates in a protest unrelated to their employment and violates university rules, the sanctions involved will likely not violate the NLRA.

    Court of Appeals Affirms Dismissal of ERISA Lawsuit Against Georgetown University

    The U.S. Court of Appeals for the District of Columbia Circuit unanimously affirmed the dismissal of an employee-filed Employee Retirement Income Security Act lawsuit. The lawsuit claimed that Georgetown University had packed its retirement plans with expensive and badly performing investment options.

    The lawsuit further alleged that Georgetown had offered its faculty and staff retirement plans with too many investment options and retained multiple recordkeepers, which drove up the administrative costs of the plans. A federal district court judge dismissed the amended complaint in April 2023, ruling that the amended complaint did not address the concerns that led to the dismissal of the original complaint.

    The Court of Appeals unanimously concluded that the original complaint failed to plead any adequate claims and the proposed amended complaint was futile as it did not cure the problem (Wilcox et al. v. Georgetown University et al. (Case no. 23-7059, DC Cir. 4/23/24)).

    Student-Athlete NLRB Unionization Decisions May Modify Taxability of Athletic Scholarships

    Although the NLRB’s decision in the Dartmouth College men’s basketball team case is under review, if the board affirms the decision that players are employees and can unionize, it could ultimately cause the IRS to rethink its current position that student-athletes receiving scholarships are not employees for purposes of the tax code. This could possibly include a change in the current position that these scholarships are not taxable as income.

    If the NLRB affirms the regional director’s decision, which many commentators conclude is likely given its composition under the Biden administration, the decision is not binding for the IRS. The IRS has independent authority to conclude whether these student-athletes are employees and are receiving taxable compensation in the form of scholarships under the Internal Revenue Code. Separately, the courts are wrestling with the question of whether student-athletes are employees under the Fair Labor Standards Act and are entitled to minimum wage and overtime. We will keep following these issues as they unfold.

    IRS Giving More Scrutiny to Tax-Exempt Status of Name, Image and Likeness Payments to Student-Athletes From Booster Donations

    Bloomberg reports that the IRS has begun revoking and not granting 501(c)(3) status to some groups formed to collect money from boosters to fund name, image and likeness payments to student-athletes. In testimony before the Senate finance committee, the IRS commissioner stated that they are scrutinizing those NIL groups that are not operating for tax-exempt purposes. These collectives have raised millions of dollars from boosters who generally expect those gifts to be tax deductible. For specific tax guidance, a tax professional should be consulted on questions arising in this area.

    U.S. Supreme Court Rules Job Transfers Can Violate Title VII and Other Anti-Discrimination Statutes

    The Supreme Court ruled unanimously on the issue of whether a plaintiff must prove significant harm to state a claim of discrimination under the applicable anti-discrimination statutes because of a job transfer. The court reversed the holdings of some circuit courts of appeal that “significant harm” must be stated to state a claim of job discrimination resulting from a job transfer.

    Nonetheless, the Supreme Court stopped short of eliminating the harm requirement entirely. The court held that a plaintiff must show that the transfer resulted in some level of injury or harm, concluding that the statute does not require by its terms the high bar of “significant” harm (Muldrow v. St. Louis (U.S. Case No. 22-193, 4/17/24)). The concurring justices, who did not dissent, argued that the change from significant harm to some other lower level of harm was confusing and would lead to further inconsistent litigation.

    NLRB Reports 10% Rise in Case Load in First Half of Fiscal Year 2024

    The NLRB reports that case filings of unfair labor practice charges or union representation votes rose 10% during the first half of fiscal year 2024 compared to the same period in the previous fiscal year. Union election petitions rose by 35% during this period, and unfair labor practice charges rose by 7%. The NLRB has jurisdiction over private institutions of higher education and has no jurisdiction over state-based public institutions. State public institutions are generally subject to state labor boards and state statutes with separate, but often parallel, rules. This uptick in private employer unfair labor practice charges and election petitions will likely be accompanied by an increase in activity by public-sector unions at public institutions of higher education.



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  • HR and the Courts — April 2024 – CUPA-HR

    HR and the Courts — April 2024 – CUPA-HR

    by CUPA-HR | April 9, 2024

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Dartmouth Refuses to Bargain With Men’s Basketball Team Union

    As the next chapter in the Dartmouth College men’s basketball players union dispute, Dartmouth has refused to bargain with the union elected to represent the players. The men’s basketball team voted 13-2, in a National Labor Relations Board-supervised election, to be represented in collective bargaining negotiations by the Service Employees International Union Local 560. The election was conducted after the NLRB regional director ruled that the student-athletes were employees under the National Labor Relations Act and therefore were entitled to an NLRB-supervised election as to whether they wanted a union to represent them. Dartmouth stated, “While we continue to negotiate in good faith with multiple unions representing Dartmouth employees, our responsibility to future generations of students means we must explore all our legal options for challenging the regional director’s legal error.”

    This action will likely lead to the NLRB filing unfair labor practice charges against Dartmouth. Dartmouth can defend on the grounds that the student-athletes do not meet the NLRA definition of employees. If the NLRB again rejects this argument, the case will be reviewable by a federal court of appeals with jurisdiction over this matter.

    Tufts Professors Charge That Fundraising Part of Their Salary Violates Their Tenure Contract

    A state of Massachusetts appellate court ruled that tenured faculty at Tufts University School of Medicine must pursue more discovery concerning their claim that the university’s requirement that they fundraise to pay for a significant part of their salary violates their tenure contract (Wortis v. Trustees of Tufts College (Mass., No. SJC-13472, 3/14/24)). The medical school professors claim that the fundraising requirement violates their contractual rights to academic freedom and to economic security.

    The allegations include the college nearly halving the salary and lab space of some of the professors who did not meet the fundraising requirement. The court sided with the college on the professors’ lab space claim, concluding that altering lab space did not threaten a professor’s economic security. The court concluded, however, that tenure is “permanent and continuous” once granted, and it would seem a “hollow promise” without a salary commitment of strong protections. Nonetheless, the court concluded that the tenure documents are ambiguous on “economic security” and more discovery is necessary to flush out the meaning of the tenure documents as they pertain to the college’s significant reductions of salary and full-time status alleged here.

    University Baseball Coach’s Reverse-Discrimination Claim Dismissed, But Retaliation Claim Proceeds to Jury Trial

    A White baseball coach’s reverse-discrimination claim against St. Edward’s University was dismissed. The coach claimed that he was fired after two separate investigations concluded that he did not discriminate against two Black baseball players. However, the federal trial court judge ruled that his retaliation claim that he was discharged because he complained about reverse discrimination should proceed to trial (Penders v. St. Edward’s University (2024 BL 90254, W.D. Tex., No. 1-22-CV-178 – DAE, 3/18/24)).

    While the investigations were ongoing, the university reviewed a tape submitted by one of the complaining players which evidenced the coach cursing at the player. While the university concluded that incident did not involve discrimination by the coach, it told the coach that his values were not in line with the school’s values and that he would be terminated at the end of the season.

    The coach alleged that the decision to terminate him at the end of the season was illegal and demanded another meeting with his lawyer present. The university allegedly responded a couple of hours later terminating the coach immediately. The judge ruled that the coach’s claim that his termination was “illegal” was protected activity and a jury could conclude that the termination, in close proximity to his protected activity, was an unlawful retaliation against the coach for raising his legal claim.

    School Board Prevails in Race Discrimination and Defamation Lawsuit Brought by Former Track Coach

    Maryland’s Anne Arundel County school board won summary judgement, after a judge dismissed a discrimination case brought by a former track and cross-country coach who was fired after a verbal and physical altercation with a student. The federal court dismissed the coach’s discrimination claims after review of the incident, which was recorded on video, concluding that the plaintiff exercised poor judgement in his actions, which violated school policy, and presented no evidence of discrimination or more favorable treatment of comparators (Daniels v. Board of Education of Anne Arundel County (2024 BL 77797, D. Md. No. 1:22-cv-03057, 3/8/24)).

    The federal court judge rejected the plaintiff’s argument that his conduct was justified because he also served as a substitute school security officer, concluding that his actions still violated school policy. The court also dismissed the plaintiff’s defamation claims, holding that the school board’s statements to a local news blog, including that the plaintiff had been suspended while an investigation was taking place, were not false.

    Several States Pass Ban on Anti-Union Captive-Audience Meetings — Employer DEI Training Is a Target in Conservative-Leaning States

    Five states have passed employer bans on anti-union captive-audience speeches (New York, Connecticut, Maine, Oregon and Minnesota) and such legislation has been introduced in nine additional states (California, Washington, Alaska, Colorado, Illinois, Maryland, Vermont, Massachusetts and Rhode Island). Business groups in Minnesota and Connecticut have initiated litigation challenging these state bans.

    As a federal matter, the NLRB has not ruled that such captive-audience meetings violate the NLRA. However, the NLRB’s general counsel has taken the position publicly that such captive-audience meetings violate employees’ federal labor rights.

    At the same time, conservative-leaning states such as Florida have enacted restrictions on employer diversity, equity and inclusion training. The 11th U.S. Circuit Court of Appeals (covering Alabama, Florida and Georgia) has struck down part of the Florida DEI restriction on First Amendment grounds. Separately, about six states, according to Bloomberg, require anti-discrimination training, including sex harassment training, as a matter distinct from DEI training. It is important to keep up with these matters according to the latest developments in the individual states in which your institution is operating.



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  • HR and the Courts — March 2024 – CUPA-HR

    HR and the Courts — March 2024 – CUPA-HR

    by CUPA-HR | March 13, 2024

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Dartmouth College May Appeal NLRB’s Decision Allowing Basketball Players to Unionize

    The Dartmouth College men’s basketball team voted 13-2 to unionize, selecting the Service Employees International Union Local 560 to represent them in collective bargaining. While student-athletes at Northwestern University voted to unionize some 10 years ago, the National Labor Relations Board declined jurisdiction in that case. Here, the NLRB appears to be taking a different approach and has affirmed the regional director’s decision that the basketball players are employees of the college.

    Bloomberg reports that Dartmouth stated it has “deep respect” for its unionized workers but does not believe this path is “appropriate” for basketball players. Dartmouth has argued to the NLRB that its student-athletes are not employees and that its basketball players are participating in a voluntary extracurricular activity. The NLRB, with one dissenting vote, denied Dartmouth’s motion to stay its decision, ruling that the basketball players are employees of the institution. The legal path forward is complex, and we will report on developments as they occur.

    Separately, the NLRB is conducting a hearing on the West Coast involving an unfair labor practice complaint filed against the University of Southern California, the Pac-12 Conference and the NCAA regarding their refusal to bargain with a union representing football and basketball players at USC. The NLRB general counsel has publicly stated that she believes student-athletes are employees who should be able to unionize.

    Student-Athlete Employee Status Could Lead to Student Visa Problems

    The classification of college student-athletes as employees could lead to F-1 visa problems for international athletes enrolled in U.S. colleges and universities. The F-1 visa restricts work to 20 hours per week when classes are in session and 40 hours per week when classes are not in session. The F-1 visa is used by roughly 20,000 international athletes enrolled in U.S. colleges and universities.

    Possible workarounds are either the P-1 visa, which is a nonimmigrant visa used by professional athletes, or an O-1 visa, which is used by individuals with extraordinary ability. Commentators conclude that these workarounds are not feasible on the scale necessary to accommodate the number of international student-athletes involved. A legislative solution will probably be necessary to address this problem should the employee status of college athletes be confirmed by the NLRB, or in other litigation under statutes such as the Fair Labor Standards Act.

    Union Membership and Strike Activity Rose Dramatically in 2023

    Bloomberg Law’s statistical analyses show that union membership and strike activity rose considerably in 2023 to levels not seen in years. Unions organized almost 100,000 new workers in NLRB-supervised elections in 2023, the largest single year total since 2000. This is the fourth-largest total one-year organizing gain since 1990, according to Bloomberg Law statistics. This is also the first time since 1990 that unions have managed to increase their annual headcount for three years in a row.

    The news is similar on the strike activity front. Over 500,000 workers participated in work stoppages in 2023. This is the second-highest number since Bloomberg Law began collecting this data in 1990. The only year that saw more strike activity since 1990 was 2018, the year of multiple city- and state-wide teacher strikes.

    SpaceX’s Challenge to NLRB’s Administrative Procedures Is Transferred From Texas to California

    A federal district court judge in Texas recently granted the NLRB’s motion to transfer SpaceX’s constitutional challenge from federal court in Texas to federal court in the Central District of California, where the underlying facts, NLRB hearing, and decision took place (SpaceX v. NLRB (S.D. Tex., No. 24-00001, Motion Granted 2/15/24)).

    SpaceX argued that the Texas venue was proper because SpaceX has operations and employees in Texas who received and were subject to a company letter, distributed nationally, that the NLRB ruled violated employee rights under the National Labor Relations Act.

    The Texas federal judge rejected SpaceX’s arguments, concluding that the underlying California-based administrative proceedings were brought against a California-based company and involved its California employees. With the transfer of the case to California, SpaceX lost a potentially more favorable appeals court precedent and appellate review. The 5th U.S. Circuit Court of Appeals (covering Louisiana, Mississippi and Texas) is viewed as more conservative than the 9th Circuit, which covers California. In addition, the 5th Circuit has in the past ruled that aspects of decisions by other federal agencies, including the Securities and Exchange Commission, violate the U.S. Constitution.

    Employer Risk Associated With Targeting Remote Workers for Termination

    Remote work is not in and of itself a protected classification under federal or state civil rights laws. Nonetheless, the reasons for remote work could be protected, such as a disability-related concern. Bloomberg Law commentators conclude that remote workers are more likely to be laid off or miss out on promotional opportunities than peers who work in the office or in hybrid environments. Also according to Bloomberg Law, studies demonstrate that remote workers are more likely to be women, persons of color and those with disability accommodations. Evidence that any of those protected factors contributed to the termination, layoff or failure to promote could give rise to a successful challenge of the employment action under either the Americans with Disabilities Act or applicable state or federal civil rights statutes.

    Disney Actor Tests California State Law Protecting Employees From Discharge for Off-Work Political Comments

    An actor in the Disney show “The Mandalorian” filed a lawsuit claiming that she was unlawfully terminated from the show because of political comments she made outside of the workplace. Actor Gina Carano claims she was terminated after social media posts comparing the treatment of Trump supporters to how Jews were treated during the Holocaust. The plaintiff also alleges that Disney took issue with other comments she made on the COVID-19 vaccine, gender identity and voter fraud during the 2020 election.

    The lawsuit has been filed in federal court in the Central District of California and is being funded by Elon Musk. The suit was filed under a California statute that has broader protections than Title VII in protecting off-work political comments and has no cap on damages. Section 1101 of the California Labor Code protects a worker’s right to political expression outside of work, including speaking up for a candidate or cause.

    The plaintiff also alleges sex discrimination and that Disney treated male actors more favorably in similar circumstances. She alleges that male stars Mark Hamill and her co-star Pedro Pascal were treated more favorably when they engaged in off-work political statements. The breadth of the protection and scope of the California statute will be tested by this litigation brought against Disney.

    NLRB Reverses Decision, Finds Home Depot Violated NLRA Over Employee’s Black Lives Matter Slogan

    A three-member panel of the NLRB ruled 2-1 that Home Depot violated the NLRA when it told an employee that he could not work with a “BLM” slogan on his company-issued apron, thus forcing his resignation (Home Depot USA (NLRB Case no. 18-CA-273796, 2/23/24)). The NLRB panel reversed the decision of the administrative law judge who had handled the trial of the case and had ruled in favor of Home Depot, holding that the company had the right to maintain its rules about company uniforms.

    The NLRB panel reversed, concluding that Home Depot violated the NLRA because the record demonstrated the employee’s protest was in furtherance of earlier group complaints about racism in the Home Depot workplace. In these circumstances, the NLRB concluded that the employee’s action in working with a Black Lives Matter slogan on his work apron was protected, concerted activity under the NLRA, as a “logical outgrowth” of earlier employee protests of race discrimination at the specific Home Depot store. The dissenting board member stated in his decision that the majority holding was an “unprecedented extension” of the “logical outgrowth” theory.



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  • NLRB Higher Education Union Election Data for 2023 – CUPA-HR

    NLRB Higher Education Union Election Data for 2023 – CUPA-HR

    by CUPA-HR | March 5, 2024

    During calendar year 2023, union organizing continued to rise at institutions of higher education. Data from the National Labor Relations Board on union organizing show that 31.2% of all private-sector workers who successfully unionized in 2023 were employed by institutions of higher education. Public institutions also saw considerable union activity, though this is not reflected in NLRB data.*

    To provide an update regarding collective bargaining at private colleges and universities across the country, CUPA-HR’s government relations team has compiled the following NLRB data** from 2023 and early 2024 to summarize organizing activity.

    Organizing Efforts at Private Institutions in 2023

    • There were 132,303 workers in bargaining units that held elections in 2023. Of this total, 32,477 workers were from institutions of higher education.
    • There were 92,574 workers in total who joined certified bargaining units in the U.S. in 2023. Of this total, 28,859 workers were from institutions of higher education.

    Private Institution Union Drive Data in 2023

    • There were 55 union elections held at private institutions of higher education last year.
    • Of the 55 held, 48 union elections resulted in worker unionization. Again, this totaled 28,859 workers from private institutions of higher education.***
      • 20 elections included non-faculty, non-student workers with various positions.
      • 14 elections included graduate students with various positions (including two RA elections).
      • 13 elections included undergraduate students with various positions (including five RA elections).
      • Two elections included faculty.
      • Two elections included non-tenured faculty specifically.
      • Two elections included adjunct faculty.
      • Two elections included postdoctoral workers.
    • Three elections did not result in unionization. Four elections have been held at institutions, but they have not yet been closed. It is unclear why they are pending.

    Private Institution Election Data since January 1, 2024

    • So far this year, there have been eight union elections at institutions of higher education. Seven of the elections resulted in worker unionization, and one is still open for unknown reasons.
      • In the seven decided elections, 2,477 workers are included in the bargaining units.
      • In the one open case, 290 workers could be unionized.
    • Since January 1, 2024, there are seven pending petitions for unionization at institutions of higher education. In the seven pending petitions, 3,674 workers could be unionized depending on the result of the elections.

    CUPA-HR will continue to monitor this NLRB data and keep members apprised of future higher education union organizing trends.

    *The NLRB is a federal agency and only has jurisdiction over private employers, which includes private higher education institutions. Public institutions handle collective bargaining activity with their state and local labor relations agencies. CUPA-HR regularly tracks activity from the NLRB and is providing an overview of union activity at private institutions, but members at public institutions are encouraged to share union activity with the CUPA-HR government relations team as it occurs.

    **To compile the data, CUPA-HR searched for “Election Results” and “R Case Reports” that included the search terms “university,” “college,” and “school” during the calendar year 2023 and from January 1, 2024 to March 4, 2024.

    ***The grouped data below do not add up to 48 total elections because some units included multiple groups (i.e. undergraduate and graduate students, tenured and non-tenured faculty, etc.).

     



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  • DOL Accelerates Regulatory Actions – CUPA-HR

    DOL Accelerates Regulatory Actions – CUPA-HR

    by CUPA-HR | July 25, 2023

    The Department of Labor (DOL) has accelerated release of proposed and final regulations as the agency strives to meet the self-imposed deadlines in the Biden administration’s Spring 2023 Unified Agenda of Regulatory and Deregulatory Actions (Regulatory Agenda). Multiple DOL sub-agencies are issuing rules and proposed rules in July and August on independent contractor classification, overtime pay exemptions, workplace inspections, and workplace injuries.

    Overtime Pay Exemptions

    As previously reported, on July 12, DOL’s Wage and Hour Division (WHD) sent to the White House Office of Information and Regulatory Affairs (OIRA) a proposed rule on “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees” (1235-AA39) for review. OIRA is part of the Office of Management and Budget (OMB) and is charged with reviewing the costs and benefits of regulatory actions. In the Regulatory Agenda, DOL targeted August for release of a Notice of Proposed Rulemaking (NPRM) on overtime exemptions. OIRA review signals DOL is trying to publish the NPRM at or close to that deadline.

    While the content of the proposed rule has not yet been released to the public, we expect that the proposal will increase the minimum salary an individual must be paid to qualify as a bona fide executive, administrative, and professional employee exempt from the Fair Labor Standards Act (FLSA)’s minimum wage and overtime pay requirements.

    WHD first announced that it planned to “update the salary level requirement of the section 13(a)(1) exemption” to overtime pay requirements within the FLSA in the Fall 2021 Regulatory Agenda (125-AA39). In early 2022, CUPA-HR and other employer groups requested that DOL hold stakeholder meetings before issuing any regulations. DOL held these meetings, and employer groups urged DOL to delay moving forward with changes to the overtime rule, which DOL did until July 12 when it sent the proposal to OIRA.

    While OIRA may take up to 90 days to conduct a review, the agency generally completes review within 30 to 60 days. In the meantime, as with any proposed rule under review, OIRA is accepting input from stakeholders who would like to voice their potential concerns with the rulemaking. CUPA-HR will be requesting a meeting to reiterate the objections made to the rule in letters that CUPA-HR and other associations have sent to DOL since the introduction of the proposal in the Fall 2021 Regulatory Agenda. Most recently, CUPA-HR and 103 other signatories sent a letter to DOL in May 2023, requesting the abandonment or, at minimum, postponement of the anticipated overtime regulation due to the supply chain disruptions, workforce shortages, inflationary pressures, and shifting workforce dynamics that are already prevalent and could be exacerbated by the rulemaking. CUPA-HR has also participated in several DOL listening sessions on the matter.

    Independent Contractor Classification 

    WHD announced in the Spring 2023 Regulatory Agenda that it plans to release the final rule for “Employee or Independent Contractor Classification Under the Fair Labor Standards Act” (1235-AA43) in August. While DOL has not sent the rule to OIRA yet, we expect it will do so any day now. WHD published the original NPRM on October 13, 2022, and allowed the public to provide comments on the proposal until December 13, 2022. Although DOL has not released the text of the final rule, we expect it will be substantially similar to the NPRM and will replace the existing Trump-era rule (1235-AA34) issued on January 7, 2021.

    In evaluating whether a worker is an employee or independent contractor under the FLSA, the courts and DOL have long considered the following five factors: the opportunity for profit or loss; investment and permanency; the degree of control held by the employer over the worker; whether the work is an integral part of the employer’s business; and skill and initiative. In the Trump-era 2021 rule, DOL concluded two of the five identified factors — the nature and degree of control over the worker and the worker’s opportunity for profit or loss — are most probative in the analysis and should be considered “core factors” given additional weight. DOL asserted that this streamlined approach was consistent with how courts had historically applied the five-factor test. The 2021 rule also explained that whether the work is “integral to the employer’s business” depends on whether the work is part of an integrated unit of production and not whether the work is critical, necessary or central to the employer’s business, as the latter is subjective, confusing and difficult to apply.

    DOL now asserts that the 2021 rule does not fully adhere to the text and purpose of the FLSA and thus intends to replace it with the new method outlined in the NPRM. This new method would shift away from the core factors test to a test in which the factors are all weighted equally and given full consideration. In addition, the DOL is reversing its position on the interpretations and clarifications of factors in the 2021 rule, including the aforementioned clarification on the integral factor.

    Many in the business community filed comments opposing the NPRM and supporting the 2021 rule, and we expect that some of those same groups will challenge DOL’s final rule in court if it is substantially similar to the proposal.

    Workplace Walkarounds 

    On July 17, the Occupational Safety and Health Administration (OSHA) sent the “Worker Walkaround Representative Designation Process” (1218-AD45) rule to OIRA for review. As mentioned above, this is an initial step in releasing the proposed rule, the target date for which was June. Again, we are not certain how long the OIRA review process will take, and OIRA is allowing for meetings with individuals and organizations interested in this NPRM.

    Under current rules, a union may designate an employee to accompany an OSHA inspector during their facility walkaround. According to the Regulatory Agenda, this NPRM would allow an employee representative to accompany the OSHA inspector, regardless of whether that representative is a direct employee of the company subject to inspection.

    Workplace Injuries and Illnesses 

    On July 17, OSHA released the text of the “Improve Tracking of Workplace Injuries and Illnesses” (1218-AD40) final rule, which was published in the Federal Register on July 21. DOL had projected in the Regulatory Agenda that it would release the rule in June 2023.

    The rule amends OSHA’s occupational injury and illness recordkeeping requirements to mandate that certain employers electronically submit specified workplace injury and illness reports to OSHA on an annual basis. More specifically, the new rule will require employers with 100 or more employees in certain industries to electronically submit content from their OSHA Forms 300 and 301 once a year. To be included in the requirements, industries must meet certain criteria that establish them as high hazard. Meanwhile, employers with 20 or more employees in designated industries will continue to be required to electronically submit content from their OSHA Form 300A annually. Finally, employers with 250 or more employees in any industry will need to continue submitting content from their Form 300A on an annual basis.

    OSHA plans to publicize the data from the annual electronic submissions. The data would be inputted to a searchable database after removing anything that could help identify the individuals in the reports. Employers will not be required to submit to OSHA details from Forms 300 and 301 related to employees’ names or addresses, the healthcare professionals involved, or the facilities where treatments were provided. In addition to these reporting requirements, the rule also updates the NAICS codes used by OSHA to select which industries should be included in these reporting obligations.

    CUPA-HR will continue to keep members apprised of further details concerning the DOL’s advancement of its Spring 2023 Regulatory Agenda, along with opportunities for advocacy.



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