Legislative Update

Greece Introduces Six-Day Workweek
Greece reportedly has become the first European Union country to introduce a six-day workweek to counter a shrinking workforce and unpaid overtime work.

Greece became the first country in the EU to mandate a six-day workweek this month, NPR reported. The law only applies to companies that operate services 24/7 in industries that may have specialized laborers, like manufacturing. Companies that opt in can require that employees work 48 hours a week, with 40% overtime pay for the extra eight hours. Workers may fulfill this by working an additional day, or by working two more hours each day, according to the Guardian.

NLRB Abandons 2023 Joint Employer Rule
The National Labor Relations Board (NLRB) will no longer try to resuscitate its 2023 joint employer rule—a rule that a federal district court struck down earlier this year.

OSHA Unveils Text of Unprecedented Federal Heat Standard

On July 2, 2024, the Occupational Safety and Health Administration (OSHA) released the text of its highly anticipated proposed standard that, if finalized, would create the first federal standard aimed at protecting workers from exposure to heat hazards in the workplace, whether indoors or outdoors. The proposed standard, titled Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings, applies to nearly all employers and is expected to be published in the Federal Register in the coming days. Learn More

House Subcommittee Hearing Raises Concerns About Proposed Heat Illness Rule
A U.S. House of Representatives Workforce Protections Subcommittee oversight hearing of the Occupational Safety and Health Administration raised concerns that the agency’s proposed heat standard rule—announced during the hottest summer on record—was rushed into creation and puts undue burdens on employers.

Enhanced E-Verify Begins Testing Phase
Prepare for a revamp in employment eligibility verification as U.S. Citizenship and Immigration Services commences trials of E-Verify+. This next-generation system will shift the process from HR to new hires themselves, streamlining the process.

EEOC Plans Proposed Rule on Pay Data Collection
The U.S. Equal Employment Opportunity Commission (EEOC) is planning to release a proposed rule next year on collecting pay data from employers. It could set the groundwork for reviving an Obama-era requirement for large businesses to annually submit their pay data by race, sex, and job category to the EEOC.

Employers Planning Lower Pay Raises in 2025
As inflation and the job market continue to cool down from their previous red-hot pace, U.S. employers are giving more conservative pay raises in 2024—and they expect to go even lower in 2025, according to new reports.

Looking to Tighten Budgets, Employees Spending Less on Benefits
The monthly median amount that employees will spend on benefits in 2024—excluding retirement savings—is down from the previous two years, data finds. That reveals a troubling trend ahead of open enrollment, according to experts.

What Proposed Regulations on Paycheck Advances Mean for Earned Wage Access Benefits
The Consumer Financial Protection Bureau proposed an interpretive rule that would require earned wage access apps to disclose more information to borrowers, including more details of associated fees and costs.

New Bill Seeks to Permanently Extend Tax-Free Student Loan Repayment Benefit
The Employer Participation in Repayment Act, a new bipartisan bill, could permanently allow U.S. employers to contribute up to $5,250 tax-free annually to their employees’ student loan repayments. This extension of a provision from pandemic-relief efforts that’s set to expire in 2026 could serve as a crucial tool for attracting top talent and easing the national $1.75 trillion student debt burden.

Another Big Employer Benefit Challenge: Employees Not Taking Earned PTO
Despite paid time off (PTO) being a valued employee benefit, a report from fintech company Sorbet reveals that most workers are not using their full vacation benefits, with 62% leaving a third of their PTO unused in 2023. Experts warn that this trend could expose employees to increased stress, anxiety, and burnout.

Congress Introduces Bill to Restore Chevron Deference to Agencies’ Rules
Federal agencies may still get final say over how to interpret congressional statutes
Democratic senators have introduced a bill to restore Chevron deference to federal agencies’ rules on ambiguous provisions of laws.

USCIS Extends Form I-9 Expiration Date to 2027
U.S. Citizenship and Immigration Services (USCIS) has extended the expiration date for Form I-9, which is used for employment eligibility verification, to May 31, 2027.

The U.S. Equal Employment Opportunity Commission (EEOC) is scheduled to publish its final rule and guidance for implementing the Pregnant Workers Fairness Act (PWFA) on Friday, April 19.

The PWFA guarantees pregnant workers access to reasonable accommodations related to pregnancy, childbirth, or related medical issues unless doing so would impose undue hardship on business operations. Modeled after the Americans with Disabilities Act (ADA), the PWFA provides a similar “reasonable accommodation” request process; applies to employers with 15 or more employees; and uses terms like “undue hardship” and “essential functions.”

SHRM submitted a formal comment during the rulemaking process to help ensure PWFA implementation would be smooth for HR professionals. The final rule offers definitions, examples of reasonable accommodations, specific prohibitions, how PWFA interacts with other federal workplace laws and real-world scenarios to enhance the understandability of how employers should implement the law.

Key concepts and definitions from the final rule include:

• How does the PWFA differ from the ADA? Both laws ask if there are reasonable accommodations that would allow the qualified worker (current employees and applicants) to do the essential functions of the position without imposing “undue hardship” on the employer. Whether a particular accommodation will impose an undue hardship for an employer is determined on a case-by-case basis.

The first key difference is that qualified workers can utilize the protections of the PWFA by virtue of their pregnancy alone; there is no severity threshold. Because this is a lower standard than the ADA, some of the medical certification requirements are not as rigid. Second, the PWFA sets up a situation where an employer might temporarily suspend an “essential function” for an employee as a reasonable accommodation, as long as the employee’s inability to do that task is “temporary” and can be performed “in the near future.” According to the new rule, the employer’s temporary suspension of a job function(s) does not bar the employer from contending that the function(s) is essential for other accommodation requests in the future. 

• What are some examples of reasonable accommodations? Section 1636.3 (i) lists a series of non-exhaustive examples of “reasonable accommodations” for purposes of the PWFA. Listed among them are making existing facilities used by employees readily accessible to and usable by employees with known limitations under the PWFA; job restructuring; part-time or modified work schedules; reassignment to a vacant position; restroom breaks; telework or remote work; leave; and temporary suspension of one or more of the position’s essential functions.
  
  The EEOC has listed four instances that are, in virtually all cases, “reasonable accommodations” that will not impose an undue hardship. These “predictable assessments” include:
  1. Allowing an employee to carry or keep water near and drink, as needed;
  2. Allowing an employee to take additional restroom breaks, as needed;
  3. Allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and
  4. Allowing an employee to take breaks to eat and drink, as needed.
• How does a worker request a “reasonable accommodation”? The qualified worker must first “communicate to the employer” their known limitation, which means making “the employer aware of the limitation by communicating with a supervisor, a manager, someone who has supervisory authority for the employee or who regularly directs the employee’s tasks,…human resources personnel, or another appropriate official, or by following the steps in the covered entity’s policy to request an accommodation.” This does not have to be in writing nor does the worker need to use any specific wording or medical terms.
• What is “reasonable documentation” and what are the employer’s limitations on requesting it? Like the ADA, the initial request by the worker may trigger the employer to initiate an informal, interactive process to determine the “appropriate reasonable accommodation.” This may include the employer seeking supporting documentation (although it is not required) when it is “reasonable under the circumstances.” Under the final rule, reasonable documentation means “the minimum that is sufficient” to confirm the physical or mental condition; that it is “related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions;” and that an adjustment or change at work is needed.
  
  It is not considered “reasonable” to request documentation when the known limitation and the adjustment or change at work needed due to the limitation(s) are “obvious” and the employee provides self-confirmation; when the employer already has sufficient information to make the determination; when the qualified worker has provided a self-confirmation and seeks an accommodation listed under a “predictable assessment;” when the accommodation is related to a time or place to pump at work or other matters related to nursing during working hours; and when the requested accommodation is available to other employees per the organization’s policies and practices.

As the PWFA is implemented, SHRM will ensure our members are well-equipped to follow the law and applicable EEOC regulations. As a member of SHRM's Advocacy Team (A-Team), stay tuned for more updates on this critical workplace issue.

Sincerely,
SHRM Government Affairs

January, 2024

U.S. Department of Labor Finalizes Independent Contractor Regulation

The U.S. Department of Labor published a final rule on January 9, 2024, defining “independent contractor” under the Fair Labor Standards Act. The final regulation rescinds a 2021 rule defining the same term. In place of the 2021 rule, this final rule adopts a six-factor test focused on the “economic reality” of the relationship between a potential employer and a worker. The test asks whether, as a matter of economic realities, the worker depends on the potential employer for continued employment or is operating an independent business. Learn More

House Rejects Joint Employer Rule
The U.S. House of Representatives voted 206-177 on Jan. 12 to overturn the National Labor Relations Board’s new joint employer rule. Here’s what will likely happen next.

Littler’s Inclusion, Equity and Diversity C-Suite Survey Report

Employers face numerous legal and workplace complexities in managing their inclusion, equity and diversity (IE&D) programs, from the repercussions of the U.S. Supreme Court’s affirmative action decisions to new anti-IE&D state laws and mounting calls for corporate leaders to take a stance on social issues. How are employers responding to this critically important – and increasingly embattled – workplace issue? Littler’s Inclusion, Equity and Diversity C-Suite Survey Report gathers insights from more than 320 C-suite executives located across the U.S. on their organizations’ IE&D commitments and the steps being taken to advance these goals. (SE ATTACHMENT)

Unemployment insurance payments
Reynolds also called for decreasing the amount of money Iowa businesses pay into the state’s unemployment insurance system per employee by half. According to the governor, her plan would reduce payments from employers by $800 million over five years.
"Instead of paying money into the government, these businesses can create more jobs, increase salaries or reinvest into their communities," Reynolds said.

7 Trends to Watch in Benefits and Compensation in 2024
More financial health offerings, a fresh look at pensions and continued movement on pay transparency are among the trends to watch in the total rewards space this year, according to industry experts.

What Would Overruling Chevron Mean for Labor and Employment Law?

Next week, the U.S. Supreme Court will hear oral arguments in two cases asking whether to overturn Chevron USA, Inc. v. Natural Resources Defense Council. Chevron is a landmark administrative law decision. It requires courts to defer to the legal views of federal agencies—including the agencies that enforce labor and employment laws. In this Insight, we ask how overruling Chevron would affect those agencies and their activities. We conclude that the agencies would likely face more challenges to their rules and regulations. We also conclude that the agencies might publish fewer and more modest regulations going forward. Learn More
 

Four-Day Workweek Continues to Gain Interest
While not widespread in practice, the four-day workweek is cropping up in a variety of industries, including manufacturing and policing. Some employers see it as a way to avoid layoffs, as a hiring and retention strategy or to promote a culture of work/life balance.

Ten Reasons Employers Should Pay More Attention to USERRA

This year, the Uniformed Services Employment and Reemployment Rights Act (USERRA) turns 30 years old. Although this law, prohibiting employers from discriminating and retaliating against employees or applicants because of their military status or obligations, has been on the books for three decades, one would be mistaken to think USERRA has mellowed with the years. If anything, recent history, including a 2022 Supreme Court decision finding that USERRA waives state sovereign immunity, and pending high-stakes litigation regarding whether employers must provide paid short-term military leave in certain cases, shows that the efforts of employers to comply with USERRA may be more critical today than at any previous point in the law’s lifespan. In honor of its 30-year milestone, we offer this top-ten list of the reasons employers should pay more attention to USERRA and its expansive protections for service members and veterans. Learn More