In recognition of St. Patrick’s Day, we have seen a veritable parade of labor-related stories this week.
In response to President Biden's executive order on protecting worker health and safety, the U.S. Occupational Safety and Health Administration (OSHA) launched a national emphasis program focusing enforcement efforts on companies that put the largest number of workers at serious risk of contracting the coronavirus. The program also prioritizes employers that retaliate against workers (whistleblowers) for complaints about unsafe or unhealthy conditions. The primary target industries of the directive includes the following: ambulance and home healthcare services; department stores, supermarkets, and restaurants; healthcare and long-term care facilities; meatpacking and poultry processing facilities; and warehouses and storage facilities.
In other labor news, the U.S. Department of Labor (DOL) issued a notice of proposed rulemaking to withdraw the “Independent Contractor Status Under the Fair Labor Standards Act” rule. The original final rule, which was published in the last two weeks of the Trump administration, was set to take effect March 8. Interested stakeholders will now have until April 12, 2021, to submit comments on these proposals. The rule relates to the standard the DOL uses to determine whether a given worker is an employee covered under the Fair Labor Standards Act (FLSA), or an independent contractor. FLSA-covered employees are required to be paid a minimum wage, are entitled to overtime pay at one-and-a-half times their regular rate of pay for work beyond 40 hours in a week, and are subject to certain recordkeeping requirements. The current proposal to withdraw the rule does not indicate whether or what analysis the DOL might adopt to replace it.
The House of Representatives approved the Protecting the Right to Organize (PRO) Act, on a 225-206 vote, largely along party lines, with five Republicans joining the passing vote. The PRO Act would likewise amend definitions of what it means to be an employer or an employee, curtaining definitions of independent contractors. The bill would change union certification processes. While an initial vote to certify a union would still be anonymous, on appeal, unions could ask workers to share how they voted on an appeal. The act would also eliminate the 27 right-to-work states, or states where laws prohibit union security agreements. We’ll be keeping an eye on the Senate for the next steps in this initiative.
Iowa legislators are currently considering three inter-related tort reform bills. The measures would limit recovery for noneconomic damages in civil actions to $1 million for personal injury or wrongful death cases against commercial motor vehicle owners or in medical malpractice. The bills’ sponsors cite the current legal landscape for damages in Iowa and assert that the “system seems more propped up to benefit the trial lawyers than it does the injured individuals in both malpractice and trucking cases.” We’re tracking these bills through committee in Des Moines.
The Texas House Committee on Judiciary and Civil Jurisprudence heard House Bill 19, a measure that would reform litigation practices related to trucking accidents. According to the U.S. Department of Transportation, Texas has the highest number of large truck and bus crashes in the country. In part, HB 19 would limit the ability to sue trucking corporations and redirect liability to the commercial drivers. If enacted, a plaintiff would have to demonstrate “grossly negligent” behavior to sue a company whose employee caused injury or death. Advocates in Texas’ trucking industry have been pushing an overhaul to the state’s accident liability law, whereas critics of the bill claim the proposed legislation will create a “free pass” for trucking companies.
Making Our Way Around the Country
Staying in the Lone Star State, the Texas Department of Insurance (TDI) is seeking public comment from workers’ compensation stakeholders on an informal draft rule pertaining to health care networks. The discussion draft includes provisions to reduce the burden on networks and carriers by removing unnecessary data requirements, align network requirements to other network plans and utilization review requirements, and shorten and simplify the rules. TDI’s informal draft rules will be open for comment until April 12th.
Lawmakers in Ohio introduced House Bill 203, a measure to “enhance Ohio’s economic competitiveness enacting occupational license reciprocity.” Under the bill, out-of-state occupational licenses, such as those held by electricians, truck drivers, and public accountants would be recognized in Ohio if the individual is in good standing with their profession, maintains a proficient level of work experience, and meets the minimum educational requirements. Ohio State Senator Kristina Roegner (R-27th Dist.), who introduced companion legislation in the Ohio Senate, stated, “[i]f someone has been trained and licensed in one state then they should not have to jump through hoops to be licensed in another state…This bill will say to those licensed professionals, ‘come to Ohio, you and your skills are welcome here.’”
The Utah State Legislature passed legislation creating a “general purpose regulatory sandbox,” managed by the Office of Regulatory Relief (ORR). This structure provides a way for companies to begin operations with reduced regulatory obligations. The move follows the unanimous August 2020 Utah Supreme Court decision that resulted in the Office of Legal Services Innovation, which just authorized the nation’s first non-lawyer owned legal advisory firm. Most regulatory sandboxes relate to start-ups in financial services industries or “fintech” firms, but there are other experimental frameworks for insurance, energy, and legal services. The World Bank tallies up 73 regulatory sandboxes across the world, with the majority of them being launched in the past two years.
AN IRISH BLESSING
Back to our main story this week, we say, “top of the mornin’ to all of you!” May the road rise to meet all of you, and the wind be always at your back, and until we meet again next week, here’s the U.S. Center for Disease Control and Prevention’s guidance on safety in the celebration of St. Patrick’s Day. Stay safe, stay well, and stay connected.