December 15 is National Bill of Rights Day, and this observance of our nation’s first 10 constitutional amendments is a great opportunity to discuss employee rights and changes in employment and labor laws that could impact Arkansas businesses.
Recent trends like the “Great Resignation,” “quiet quitting” and its spinoff “loud quitting,” as well as high-profile strikes such as the writers’ strike in Hollywood and the United Auto Workers strike, have focused a spotlight on workers’ rights, and the push for expansion of those rights has also been pushed to the forefront of the American labor market.
Let’s take a look at six 2023 trends that will continue to have implications on the workforce moving forward.
Increased Agency Enforcement
This year has seen an uptick in government agency enforcement efforts. In fiscal year 2023 (October 1, 2022 – September 30, 2023) the National Labor Relations Board (NLRB) filed 10% more cases than the previous year, and the highest number of cases since FY 2016. Notably, this increase included a rise in both unfair labor practice (ULP) charges and union representation petitions filed. This indicates that not only are unions pushing for more collective bargaining but also that individual workers are reporting violations of their rights under the NLRA in greater numbers. Similarly, in FY 2023, the Equal Employment Opportunity Commission (EEOC) filed 143 new employment discrimination lawsuits, including almost double the number of systemic lawsuits filed in the past five years. This is more than a 50% increase over FY 2022.
Along with increased agency enforcement, the legislature and administrative agencies have proposed and enacted several new laws and regulations that have expanded protections for workers.
Labor Law Changes
The NLRB has aggressively pursued changes in interpretation of existing standards and expansion of workers’ rights under the National Labor Relations Act (NLRA). For example, the NLRB’s decision in Cemex Construction Materials Pacific, LLC lowered the threshold for employees and unions to seek recognition to collectively bargain. Other changes to NLRA rules have sped up the time to respond to a demand to unionize to just two weeks.
The NLRB also issued a guidance memorandum declaring that merely including a noncompete agreement in employment contracts or severance agreements is in violation of employee’s rights under the NLRA, except in limited circumstances. In McLaren Macomb the agency ruled that confidentiality and non-disparagement provisions in severance agreements are generally illegal, unless they are “narrowly tailored” to avoid infringing on employees’ rights under the NLRA.
Expansion of Anti-Discrimination Protections
On the equal employment opportunity and anti-discrimination front, 2023 brought expanded protections for employees. Some cities added “citizenship” and “immigration status,” as well as off-duty cannabis use, as classes protected from discrimination in the workplace.
Two new laws expanding protections for pregnant and nursing workers went into effect in 2023: the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act, which amended the Fair Labor Standards Act (FLSA) to require covered employers to provide employees who are nursing at work with reasonable break time to pump breast milk for their nursing children and a private place—not a bathroom—to do so, and the Pregnant Workers Fairness Act (PWFA), which requires covered employers to provide reasonable accommodations for workers with certain limitations connected to pregnancy, childbirth, or related medical conditions.
Eight states currently have laws requiring salary transparency. Several individual cities across the nation have similar requirements. Another 16 states and Washington D.C. considered pay transparency requirements in their 2023 legislative sessions. While no Arkansas or federal pay transparency law exists, some Arkansas employers may be required to post the pay range for positions that can be conducted remotely in states with such laws. This is a movement to watch.
As technology advances, and especially as remote or hybrid work arrangements abound, employers now have access to huge amounts of data about their employees. Some employees are pushing for protections such as an Employee Data Bill of Rights that establishes fundamental guidelines for how workers’ data will be collected and used. If employers have not considered how employee data and AI use may affect their workplace, now is the time to develop guidelines.
Employers should also consider the extent to which employees are allowed to use AI in completing their work tasks, as well as any security risks that use of AI may create for trade secrets or liability if incorrect information is used during the completion of work tasks.
There is some support for statements of rights applicable to workers in specific industries. For instance, in September 2023, a Restaurant Workers Bill of Rights was introduced in the U.S. House of Representatives. This bill reintroduced measures for raising the tipped minimum wage, paid medical leave, and access to healthcare for the restaurant workers who comprise more than 10% of the United States workforce. Other industries, such as construction, apparel, grocery, domestic work, and general tipped work may see similar proposals.
In light of these trends in labor and employment law, employers should take proactive steps to ensure their policies are updated to reflect these recent changes. Moreover, employers must train all management and supervisors to be able to recognize employee needs and to implement workplace practices in line with new laws. Even experienced managers and HR professionals may not be aware of all of these developments. A review of employment agreements, employee handbooks, and other policies is a good place to start to bring your company up to date.
Editor’s note: Caitlin Campbell Stepina is an associate with Rose Law Firm, which was founded in 1820 and is one of the oldest in the nation. The opinions expressed are those of the author.