Author: Lorrie Coffey

2021 was a roller coaster ride when it came to labor and employment law. So what can we expect in 2022?

Now that the Supreme Court has ruled against the OSHA ETS on vaccine mandates, we will see a shift back to more standard labor and employment law issues this year. The mid-term elections later in the year may impact the direction of labor and employment law as well. Political analysts are keeping a close eye on a number of states that they anticipate may flip with this election. Republicans only need one seat in the Senate and five in the House to regain control. If that happens, we may see a shift from an employee-friendly Congress back to an employer-friendly Congress. 

Here are some of the areas that we may see changes in for 2022.

Wage and Hour

Eleven states have increased their minimum wage rates for 2022. If you are a multi-state employer, you need to confirm that you are compliant with these new rates. In addition, Congress increased the minimum wage for all new, renewed, and extended federal contracts to $15.00 effective January 30th. Some believe this increase is a first step to increasing the federal minimum wage. 

In addition, the DOL released rulings regarding tipped wages in December. The first ruling reinstates the 80/20 rule, by which employers can claim the tip credit if at least 80% of the work of the employee is tip-generating. The second ruling was aimed to clarify regulations regarding tip pooling or withholding of tips, which is prohibited unless it is to cover the cost of credit card fees. 

It’s anticipated that the federal minimum wage debate will continue in 2022. 

Labor Relations

In December, the NLRB issued a request for briefs to survey whether or not they should reconsider their standard for determining Independent Contractor status. There are also numerous states weighing the question of gig workers and employment classification this year, with Massachusetts aiming to put the question on the ballot this year and other states to possibly follow. Congress currently has bills on the floor aimed at helping to protect the gig economy as well. So it will be interesting to see if there are any advancements on this issue in 2022. 

Immigration

It’s anticipated that the current backlogs will shrink this year, although they will not disappear altogether. Under Biden, possible immigration reform includes increasing the total number of allowable employment green cards up from 140,000 annually as well as carrying over any unused slots into the next year. The Biden plan would also add family green cards to allow the family members of the employment green cardholder access to the US without counting against the total number of green cards issued each year. 

The Biden administration is reviewing the high rate of denials issued for H1-B Visas under the Trump administration and has proposed legislation that would provide permanent work permits to the spouses of H1-B holders. 

The House just passed H.R. 4521 The America COMPETES Act on February 4th. While H.R. 4521 is aimed at strengthening competition against China, it contains two elements that would impact employment visas. First is the creation of a new classification of visa, W-1, W-2, and W-3, aimed at start-up businesses. Second, the Act would allow for Visa holders with certain doctoral degrees in STEM to obtain a Visa without that Visa counting against annual limits.

Healthcare

The Build Back Better Act passed the House in November but stalled in the Senate. Democrats promised a trimmed back version of the bill and Biden continues to attempt to revive talks, but a revised bill has not yet been presented. The fate of the bill is uncertain, but it’s definitely one to keep an eye on this year. While the Build Back Better Act is a very robust bill that would impact many areas of government, employers should pay particular attention to the areas that would impact healthcare, including expansion of the ACA (including modification of the affordability test) and paid family and medical leave. 

Retirement

The Supreme Court ruled on January 28th to send the case of Hughes v. Northwestern University back to the 7th Circuit Court for review.  Plaintiffs in the case claim that the plan fiduciary violated ERISA when it did not ensure that the funds offered were prudent options and that the recordkeeping fees were excessive. The outcome of this case could impact a number of cases across the country as well as set a higher standard for fiduciary responsibilities moving forward.

For many of us right now, our focus is on the OSHA vaccine mandate that was issued on November 5, 2021, and goes into full effect on January 4, 2022. Many employers have been struggling to decipher the mandate requirements, keep up with the latest news, and implement policies that are compliant before the deadline. But as with most things in HR, this is no easy task and it’s ever-changing. Let’s talk about what we know, what we might expect, and how employers can successfully navigate what might come. 

Deciphering the mandate:

• The mandate was published on November 5, 2021, and was effective immediately, with employers required to comply within 30 days and implement the testing requirements within 60 days. It will affect approximately 84 million employees nationwide. 
• It impacts employers with 100+ employees, even if those employees are spread over multiple locations. In the 26 states that have OSHA state plans, it may also impact public sector employees. 
• It gives employers the option to implement a full vaccine mandate or to allow onsite employees to test at least weekly and wear a face mask in lieu of vaccination. Remote employees are not required to test unless they are returning to work onsite, at which time they must test within 7 days prior to their return to the office. Employers are not required to pay for testing unless otherwise required to do so based on state law, contract requirements, or other written agreements.
• Employers will be required to obtain and maintain proof of employee vaccination status along with a roster of all active employees’ vaccination status. This includes keeping a copy of each test result for unvaccinated employees. 

Status of Legal Challenges: 

• The OSHA Emergency Temporary Standard (ETS) has resulted in multiple federal lawsuits. On November 6th, the U.S. Fifth Circuit Court of Appeals issued a stay order requiring that OSHA not implement the ETS until the courts could hear the case and make a final decision. 
• On November 12th a three-member panel from the Fifth Circuit issued a lengthy order to continue the stay until the petitioners’ case could be heard. In the order, the panel stated that the petitioners’ challenges to the Mandate have a reasonable likelihood to succeed based on the merits of their arguments. 
• On November 16th, a lottery was held to determine which court would hear the consolidated case of the 34 petitioners. Those 34 cases span across 12 different federal courts. The U.S. Sixth Circuit Court of Appeals was randomly selected to hear the case. It’s worth noting that the Sixth Circuit is made up of 26 judges, 20 appointed by Republicans and 6 appointed by Democrats. The case will be assigned to a three-member panel that will be randomly selected. The Sixth Circuit has three options- agree with the stay order, modify the current stay order, or vacate the current order and issue their own order. 
• On November 24th, OSHA filed an emergency motion with the Sixth Circuit to end the stay. At a minimum, OSHA has asked the court to reinstate the masking and testing guidelines outlined in the ETS until the case is resolved. At this time, the Sixth Circuit has not issued a response to the emergency motion. Based on the Sixth Circuit schedule, the stay is likely to last until at least December 10th. 
• It’s important to note that in the history of OSHA there have only been nine ETS orders issued and six of those were challenged in the courts. Of those six that were challenged, only one survived. 
• Many states, including Alabama, have passed laws that are aimed at combating the mandate. Alabama passed Senate Bill (SB) 9 Limiting Vaccine Mandates on November 4th, which provides guidance to employers on making accommodations for employees who seek medical or religious accommodations and provides a standard form to be utilized (contained within SB9). The law makes denials of accommodation appealable and the employer cannot terminate employment until the appeal is determined. 

Preparing for Implementation:

With the stay order and the mandate’s future up in the air, what should employers do? 

1. Stay up to date on the legal challenge. The legal experts are keeping a close watch on this and pushing out updates almost daily. If you don’t already, subscribe to resources such as SHRM and connect with local employment attorneys who send out regular updates and newsletters. 
2. Look at what you’re currently doing that is compliant with the mandate. Are you still requiring masks in your offices, are you collecting and tracking vaccine status for those employees who are vaccinated, and how are you handling accommodations? Do you have a policy in place that outlines these requirements? 
3. Then look at what you need to be doing to be compliant with the mandate. What mandate requirements are you not currently doing and what will it take for you to start doing them if and when the time comes? If you’re not tracking vaccine status, what steps do you need to take to gather that information, where will you maintain it, and how will you keep a roster? Are you going to require full vaccination or are you going to allow employees the option to test and mask up? Based on the steps you need to take to be compliant, what revisions do you need to make to your policy? 
4. Review your state laws. Has your state, like Alabama, passed legislation to combat the mandate? How does the state legislation impact the steps you need to take to be compliant with the ETS and the state legislation? And keep an eye on your state legislation. If the ETS is allowed to go forward, that could impact the legality of those state laws. 
5. Review your contracts. How would the mandate impact any contracts you have? If you are an employer with less than 100 employees but are a sub-contractor to a larger company, will you be required to comply with the mandate in order to be compliant with your contract? What information will you need to provide to the contract client to show that your employees working on the contract are vaccinated or have tested weekly? 
6. Be prepared for accommodation requests. Again, if you’re in Alabama, the law just changed on accommodations and you have to use the state-provided accommodation form. And any denial of accommodation can be appealed. If you have locations outside of Alabama, do your research and find out of those states have passed legislation to counter-act the mandate and how those laws might impact how you implement the mandate. 
7. Sit back and wait, but be prepared. Have your policy and procedures ready to go, but don’t implement them until the Sixth Circuit makes a final decision on the ETS. The petitioners have a strong argument based on the feedback provided by the Fifth Circuit panel’s order. And history shows that OSHA’s ETS orders have a long shot at surviving the courts. 

While it’s impossible to know which way the court will rule, the consensus within the legal community is that OSHA will have a difficult time effectively making its argument. 

Americans work an average of 41.5 hours per week, with 11.1% working over 50 hours per week. World Population Review

Americans work 137 more hours per year than Japanese workers, 260 more hours per year than British workers, and 499 more hours per year than French workers. International Labour Organization

Based on data from the US Bureau of Labor Statistics, productivity per American worker has increased 400% since 1950. Meaning Americans should be able to accomplish in 10 hours per week what it took 40 hours to accomplish in 1950. Yet, we are still working 40 hours per week. 

So where did the 40-hour workweek start? With Henry Ford. He implemented it in his Detroit factory it was an innovation in favor of employees. Most workers were putting in six days per week and Ford created the concept of work-life balance. He reduced the workweek to five days in order to allow his employees ample time to rest and be with their families. 

Over a century later we still talk about a work-life balance, but we’ve lost the purpose that drove Ford to implement that 40-hour week. We’ve gradually climbed that hill back up towards longer hours and less work-life balance. We shun those who work only 40-hours per week and praise those who work 60-80 hours per week. We have become a society that brags about how many hours we put in at work each week. 

I’ll never forget my first job out of college, I received my offer letter and it said that I was required to work a minimum of 45 hours per week. And rarely in the three years, I worked there did I put in less than at least 50, sometimes as much as 80. 

We want to claim that certain industries just require at least 40-hours per week, such as healthcare, retail, or manufacturing, but do they really or are we just stuck in that “we’ve always done it this way” rut? Autonomy, an independent research group in Iceland, conducted a four-year study from 2015 to 2019 in which they reduced the workweek of over 2,500 employees from 40 hours down to 35-36 hours. The results were overwhelming. 

• Employees were happier and healthier
• It improved work-life balance
• Productivity remained the same or increased

The results were so positive that by the time the study was published earlier this year, 86% of Iceland’s population had either moved to a reduced workweek or added into their collective bargaining agreements to do so in the future. 

The study by Autonomy is not the only study that has been conducted in recent years and as with the Autonomy study, results show that decreasing the workweek has a positive impact on employee health and wellbeing, work-life balance, and productivity. 

So why do we continue to hold so tight to the 40-hour workweek?