Blogs

HR Policy Condemns Proposed FTC Non-Compete Ban

By Greg Hoff posted 04-21-2023
HR Policy filed comments with the Federal Trade Commission (FTC) expressing its concerns with the Commission’s Proposed Rule to prohibit the use of non-compete agreements in most instances. The comments emphasize the benefits of reasonably tailored non-compete agreements, including safeguarding trade secrets and investments in employee talent, and urge the Commission to, at the very least, exempt executive-level employees and those with access to trade secrets from any prohibition. Unlawful rulemaking: The comments argue the FTC lacks the statutory authority and “clear congressional authorization” to regulate non-compete agreements in the first place, ...

House Republicans Target Biden Administration “War” on Independent Contractors

By Greg Hoff posted 04-21-2023
Republicans on the House Subcommittee on Workforce Protections held a hearing on April 19 in which they criticized the Biden administration’s policies on independent contractors. The hearing added to the ongoing debate on Julie Su, President Biden’s nominee to take over the Department of Labor from the departed Marty Walsh, as Ms. Su was involved with California’s strict AB 5 independent contractor law. The hearing, “Examining Biden’s War on Independent Contractors,” focused on the Biden administration’s policies on independent contractors, including a proposed rule that would restrict the classification, and the nomination of Julie Su to head the Department ...

Charlie Tharp Talks New Regulations to Harvard Business Review

By Megan Wolf posted 04-21-2023
In a new Harvard Business Review piece , the Association’s Charlie Tharp highlights hot topics in U.S. employment regulation that may have broad implications for employers’ talent strategies. From a proposed ban on non-compete agreements and pending human capital management disclosure rules to recent pay transparency legislation, CHROs are rightly concerned about the impact of policy changes on talent. However, Dr. Tharp suggests, leaders can consider “viewing the coming changes as an opportunity to think deeply about their talent strategy and turn these regulatory developments to their advantage.” Earlier this year, the FTC proposed a blanket ban ...

New Report Sheds Light on Employer Preventive Health Services Obligations

By Margaret Faso posted 04-21-2023
A new report from the University of Michigan provides useful information on which preventive services employers must continue to cover without cost sharing following a court decision striking down the Affordable Care Act provisions for preventive services coverage, pending further guidance from the Biden administration. Background: On March 30, 2023, a federal court struck down the ACA mandate that requires employer health plans to cover, without cost sharing, certain preventive service recommendations of the U.S. Preventive Services Task Force (USPSTF) that have an “A” or “B” rating. The Department of Justice filed an appeal on March 31, 2023, and ...

Unanimous SCOTUS Ruling Could Open Door for New Challenges to NLRB Authority

By Dan Yager posted 04-21-2023
In a unanimous ruling announced by Justice Elana Kagan, the U.S. Supreme Court has held that a plaintiff can challenge the constitutionality of a federal agency action in federal district court without awaiting that agency’s final determination. The case involves challenges to the Federal Trade Commission and the Securities and Exchange Commission, but it potentially opens the door for such challenges to the National Labor Relations Board, where parties generally also must await a final Board decision before going to court. Yet, such a direct challenge would have to rest on a constitutional claim and not simply a dispute over the labor law. Not over yet: ...

OFCCP’s Second Audit Proposal Fails to Address Employer Concerns

By D. Mark Wilson posted 04-21-2023
The Labor Department’s Office of Federal Contract Compliance Programs’ revised scheduling letter proposal would substantially change its audit process for federal contractors and would dramatically increase the costs for its initial data request. Background: In November 2022, OFCCP proposed to significantly change its “scheduling letter,” which formally initiates federal contractor affirmative action audits and identifies the data contractors must initially provide to OFCCP at the earliest stage of a compliance evaluation. HR Policy submitted comments on the proposal. The last substantial revision to the scheduling letter was in 2014 when OFCCP ...

U.S., Mexico Reach Deal Under USMCA, With Extensive Remediation Obligations

By Wenchao Dong posted 04-21-2023
Last month, the U.S. and Mexico reached a “ Course of Remediation ” to resolve a labor complaint at VU Manufacturing in northern Mexico pursuant to the United States-Mexico-Canada Agreement (USMCA). The unprecedented solutions included sanctions and dismissals against managers responsible for undermining workers' rights, in-person trainings from the Mexican labor department to employees during working hours, and continuous sharing with U.S. authorities on the remediation process at the plant. Background: Last December, Mexican union La Liga Sindical Obrera Mexicana (LSOM) filed a petition against VU Manufacturing, marking LSOM’s second petition against ...

Workforce Diversity Disclosures on the Rise Amid Expected SEC Rule

By Ani Huang posted 04-14-2023
Just Capital published its latest report on workforce diversity disclosures (Opens in a new window) , noting that companies disclosing their EEO-1 report (what Just Capital refers to as the “gold standard” in diversity disclosures) more than tripled between 2021 and 2022. 34% of the Russell 1000 now discloses their EEO-1 report publicly, while 22% disclose detailed race and ethnicity data in another form and 16% disclose aggregate “people of color” data. In a companion analysis, Just Capital looked at shareholder returns of companies disclosing EEO-1 data and found that those companies outperformed non-disclosing companies by 7.9% over the trailing ...

Biden Administration Seeks Comments on Potential AI Regulation

By Margaret Faso posted 04-14-2023
The Commerce Department’s National Telecommunications and Information Administration (NTIA) announced a request for comment on accountability measures for artificial intelligence tools amid growing concerns about the safety of generative AI following the release of ChatGPT-4. The comments collected by the NTIA will inform the policy guidance provided to U.S. policy makers. While the NTIA serves as an advisor rather than a regulator, its advice will likely be used as a pathway to federal regulation. Audit standards already in the making: As previously reported , employers and AI vendors are already scrambling to establish standards ahead of the effective ...

Enhanced Employer Parental Leave Policies Driving Greater Use

By D. Mark Wilson posted 04-14-2023
A recent Wall Street Journal report found a significant increase in the number of employees taking parental leave, particularly fathers, and determined the main factors appear to be expanded employer policies and state programs. The share of workers with access to paid parental leave grew to 25 percent in March 2022 compared to 19 percent in 2019, according to the Labor Department. Seven states and the District of Columbia now require employers to provide paid leave , up from four in 2018. Four more states will require paid parental leave by 2026. Significant increase in workers taking parental leave. From February 2022 to February 2023, ...

Unionization Rates Continue Uptick Despite Remaining Historically Low

By Greg Hoff posted 04-14-2023
Recently released data shows a continued increase in union membership, union petitions, and unfair labor practice charges in 2022 and 2023, although union membership remains historically low, and below pre-pandemic levels. Several large unions experienced double-digit growth in 2022 , according to disclosures made to the Department of Labor and as reported by Bloomberg. The International Brotherhood of Teamsters saw a 20% percent increase in membership while the International Longshore and Warehouse Union swelled by 11%. Workers United, most famous for its ongoing organizing campaign against Starbucks, increased by 10%. Overall, disclosing labor unions increased ...

New Federal Guidance on Employer Preventive Health Services Requirement

By Margaret Faso posted 04-14-2023
The new guidance from the Departments of Labor, Health and Human Services and Treasury addresses which preventive services employers must continue to cover without cost sharing and which services they don’t have to continue to cover given the recent court decision in Braidwood Management Inc. v. Becerra . Background: On March 30, 2023, a federal court struck down the ACA mandate that requires employer health plans to cover without cost sharing the preventive service recommendations of the U.S. Preventive Services Task Force (USPSTF) that have an “A” or “B” rating. The Department of Justice filed an appeal on March 31, 2023, and a motion for a stay on ...

Union Reform in Mexico - the (Almost) Silent Revolution

By Margaret Faso posted 04-14-2023
Employers with operations in Mexico are about to experience an unprecedented shift in labor and employee relations. As Wen Dong, Director, Global Affairs for HR Policy Global, writes , after May 1, as a result of Mexico’s 2019 labor law reforms, nearly all the 500,000 collective bargaining agreements that previously existed will disappear. Effective May 1, 2023, the 2019 labor reform law requires collective bargaining agreements to be voted on by employees and states that any agreements not legitimized through this voting process before that date will be eliminated. While proponents designed the law to outlaw so-called Protection Contracts and replace ...

Illinois Biometric Privacy Law Spurs Mass Litigation Against Employers

By Greg Hoff posted 04-14-2023
A recently released report from the Chamber of Progress showed a massive spike in litigation against employers in the wake of Illinois’ Biometric Information Privacy Act (BIPA), including 1,400% increases in lawsuits and nearly $1 billion in class action settlements. Similar proposed legislation in other states risks further litigation for employers. Lawsuits skyrocketing: Beginning in 2019, when the Illinois Supreme Court ruled that BIPA plaintiffs do not need to prove actual harm caused by violations, lawsuits filed against employers jumped considerably. This includes a 1,400% increase in one year alone. Timekeeping, employers main target: 88% ...

HR Policy Members Report Significant Switch in Hybrid Workplace Models in Asia-Pacific

By Michelle Swinden posted 04-14-2023
HR Policy Global recently conducted a survey of its members with operations in Asia-Pacific regarding post-Covid workplace arrangements. The results indicate a significant shift in employer expectations regarding where work is done. Prior to Covid, 64% of members required all employees to work from a physical location; working from home was only undertaken on an ad-hoc basis. Post-Covid, this figure dropped dramatically to 6%. Likewise, pre-Covid, 33% of employers offered work location flexibility to some employees – now, this number has risen to 72%. While around 60% of companies have implemented a three-day in-office/two-day at home model, one-third ...

Bill to Improve Health Savings Accounts Reintroduced

By D. Mark Wilson posted 04-14-2023
The Health Savings Act would greatly expand access to Health Savings Accounts (HSAs) and Flexible Spending Accounts (FSAs) and significantly enhance the types of medical expenses the accounts could be used for. The bill would make HSAs available to employees beyond those in high deductible health plans (HDHP). Currently, HSAs are only available to employees enrolled in HDHPs. The legislation would, among other things: Allow HSA funds to pay health insurance premiums and direct primary care arrangements; Allow HSAs in cases where employees are also eligible for on-site medical clinic coverage; Expand “preventive care” to include prescription ...

House Labor Committee Chair Slams FTC Non-Compete Rulemaking

By Greg Hoff posted 03-31-2023
House Education and the Workforce Chair Virginia Foxx (R-NC) submitted a letter to the FTC expressing serious concerns regarding its proposed rule banning non-compete agreements. The letter argues that the Commission lacks authority to ban non-competes and highlights the negative implications banning non-competes will have on company investments in their employees. Banning non-competes exceeds FTC authority: Rep. Foxx’s letter argues that the Commission lacks the statutory authority to issue a sweeping ban on non-compete agreements, citing the recent Supreme Court decision in West Virginia v. EPA as a clear limit on major agency action that is ...

Shoring Up Communication Strategies Amid Anti-ESG Campaigns

By Megan Wolf posted 03-31-2023
As the anti-ESG political debate escalates, companies find themselves stuck in the center of this increasingly fiery battle between anti-ESG proponents and lawmakers and pro-ESG corporate stakeholders focused on managing ESG-related risks and opportunities. While some companies are addressing it “head-on” by calling out “anti-ESG risks ” in their 10-Ks, most seek to stay clear of potentially becoming being the target of anti-ESG campaigns. A recent piece from Teneo advises that companies take a hard look at their communication strategies to ensure the messaging clearly depicts how ESG initiatives link to their business strategies and long-term financial ...

Senate Hearing Highlights Fundamental Differences Over Labor Policy

By Dan Yager posted 03-31-2023
Former Starbucks CEO Howard Schultz defended his company’s labor policies in a Senate HELP Committee hearing which Committee Chair Bernie Sanders (I-VT) held to focus on what he termed the company’s waging of “the most aggressive and illegal union busting campaign in the modern history of our country.” Testifying alone for almost two hours, Mr. Schultz touted the company’s pay and benefits, noted that the company’s “direct relationship we have with our partners…is fundamental to who we are and to the success of our business,” and stated that the company is committed to good faith bargaining where a store has a union. Differences over the value of unions: ...

New DOL Guidance: What Employers Should Do as Covid Emergency Comes to an End

By D. Mark Wilson posted 03-31-2023
New Biden administration guidance clarifies how employer Covid health care coverage and payment requirements enacted during the pandemic will change when the public health emergency comes to an end in April. Employers are encouraged to carefully review the guidance and determine what, if any, changes they need to make to their health care benefits. Employers may receive special enrollment requests from employees losing Medicaid coverage and who may be eligible for, and interested in, enrolling in their employment-based health coverage. Additional guidance regarding high-deductible health plans (HDHP) may be forthcoming. In the interim, employees ...