The Occupational Safety and Health Administration (OSHA) issued a rule, effective on May 31st, that gives employees the right to authorize a representative to accompany OSHA staff during a workplace inspection. The Senate Judiciary Committee held a hearing on the use of forced arbitration in employment and consumer products. The U.S. Customs and Immigration Service (USCIS) issued a temporary final rule extending the period for employment authorization documents for up to 540 days, for those noncitizens who are authorized to work and are waiting for the review of their renewal applications. The National Labor Relations Board (NLRB) reported that union petitions and unfair labor practice charges have increased during the first six months of the fiscal year as compared to the previous fiscal year.
OSHA Workplace Inspection Rule Finalized – The Occupational Safety and Health Administration (OSHA) finalized a rule clarifying that employees have the right to authorize a representative to accompany an OSHA compliance officer during a workplace inspection. The rule becomes effective on May 31st. According to Assistant Secretary for Occupational Safey and Health Doug Parker, "The Occupational Safety and Health Act gives employers and employees equal opportunity for choosing representation during the OSHA inspection process, and this rule returns us to the fair, balanced approach Congress intended."
According to OSHA, “The final rule clarifies that, consistent with the law, workers may authorize another employee to serve as their representative or select a non-employee.” OSHA believes that the revised rule will result in more effective inspections. OSHA noted that to participate in the workplace inspection, a non-employee representative must be reasonably necessary based upon skills, knowledge, or experience that would aid in the conduct of an effective and thorough inspection of the workplace. The OSHA compliance officer retains the authority to determine whether good cause has been shown as to why an individual is necessary to the conduct of the workplace inspection and the compliance officer can deny the accompaniment right to anyone whose conduct would interfere with the inspection. Employee or employer representatives who work for the employer do not need to possess specific qualifications in order to participate in workplace inspections. In part, OSHA stated that the rule is a response to a 2017 court decision in the case of National Federation of Independent Business v. Dougherty, which concluded that only employees of the employer could be authorized as representatives.
Senate Judiciary Committee Holds Hearing on Forced Arbitration – The Senate Judiciary Committee held a hearing titled “Small Print, Big Impact: Examining the Effects of Forced Arbitration.” According to the Judiciary Committee, a study by the Economic Policy Institute found that about 60 million non-union, private sector employees in the United States are subject to forced arbitration. Senator Dick Durbin, (D-IL), chairman of the Judiciary Committee stated that while the Seventh Amendment to the Constitution guarantees the right to a jury trial, millions of Americans are denied the opportunity to go to court since they have been “forced into arbitration by the fine print buried deep in employment contracts, product manuals and terms of service.”
Myriam Gilles, Professor of Law, Benjamin Cardozo School of Law testified that the Ending Forced Arbitration in Sexual Assault and Sexual Harassment Act which was signed into law by President Biden in March 2022 amended the Federal Arbitration Act to make pre-dispute arbitration agreements unenforceable where sexual harassment or assault is alleged. She stated that while the law was “undoubtedly a step in the right direction, its enactment reveals the need for a more comprehensive statutory exemption barring forced arbitration in all contracts of adhesion.” She noted that the Older Workers Protection Act (S. 1979, H.R. 4120) would provide that a pre-dispute arbitration agreement would not be valid or enforceable where a case alleges age discrimination in violation of federal or state law. Similarly, the Ending Forced Arbitration of Race Discrimination (S. 1408, H.R. 3038) would prohibit pre-dispute arbitration agreements from being valid or enforceable, at the choice of the person alleging race discrimination. These bills have been referred to the congressional Judiciary Committees.
USCIS Increases Automatic Extension of Employment Authorization Documents – The U.S. Customs and Immigration Service (USCIS) issued a temporary final rule that increases the automatic extension period for certain employment authorization documents from up to 180 days to up to 540 days. According to USCIS, the temporary measure will prevent those noncitizens who are authorized to work from having their employment authorization and documentation lapse while waiting for the adjudication of their pending renewal applications.
USCIS noted that the temporary final rule will apply to two categories of employment authorization applicants: 1) those who timely and properly filed their applications on or after October 27, 2023, if the application is still pending on April 8, 2024, and 2) applicants who timely and properly file their application on or after April 8, 2024 and on or before September 30, 2025, which is 540 days after publication of the temporary final rule. Without this temporary rule, USCIS stated that almost 800,000 renewal applicants would be in danger of having their employment authorization lapse and between 60,000 to 80,000 employers would experience a negative impact as a result of their employees losing their employment authorization. Comments on the temporary final rule are due by June 7, 2024.
Union Election Petitions Rise 35% - The National Labor Relations Board (NLRB) reported that during the first six months of the current federal fiscal year, which began on October 1, 2023, union election petitions filed at NLRB field offices increased by 35% over the same period in Fiscal Year 2023. According to the NLRB, there were 1,618 petitions filed, up from the 1,199 filed in the first half of Fiscal Year 2023. Additionally, there was a 7% increase in the number of unfair labor practice charges filed with the NLRB’s field offices, totaling 10,278 charges. During the first half of Fiscal Year 2024, the NLRB received a total of 11,896 charges consisting of union petitions and unfair labor practice charges, which is a 10% increase during the first half of Fiscal Year 2023, when 10,811 cases were filed.
The NLRB noted that its caseload has increased over the past several years while it struggles with funding and staffing shortages. Congress has provided flat funding in nine of the past ten years. NLRB General Counsel Jennifer Abruzzo stated, “Congress needs to fully fund the NLRB to effectively and efficiently comply with our Congressional mandate when providing quality service to the public in conducting hearings and elections, investigating charges, settling and litigating meritorious cases, and obtaining full and prompt remedies for workers whose rights are violated.”
Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues and was an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.