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Last Week, Today. Below is a quick rundown of some significant workplace policy developments that the Buzz missed while at Workplace Strategies 2024. (We hope you can join us at next year’s Workplace Strategies seminar in Las Vegas, Nevada.)

Artificial intelligence. As the Buzz forecasted, pursuant to President Biden’s executive order on artificial intelligence (AI), the U.S. Department of Labor (DOL) has issued two guidance documents related to the use of AI in the workplace.

  • OFCCP guidance on AI. The Office of Federal Contract Compliance Programs (OFCCP) has issued guidance for federal contractors and subcontractors regarding equal employment opportunity and the use of AI. The guidance warns contractors that “[a] federal contractor is responsible for its use of third-party products and services, such as tools for employment screening and selections, recordkeeping, and automated systems, including AI,” and that when using another entity’s product or service, “[a] federal contractor … cannot delegate its nondiscrimination and affirmative action obligations.” Further, with regard to AI software, the guidance notes that “OFCCP neither endorses products nor issues compliance certificates.”
  • Wage and Hour Division guidance on AI. On April 29, 2024, the DOL’s Wage and Hour Division released a field assistance bulletin (FAB), titled, “Artificial Intelligence and Automated Systems in the Workplace under the Fair Labor Standards Act and Other Federal Labor Standards.” The FAB makes the point that even when AI and other technologies are deployed in the workplace to track hours, calculate wages, and administer leave pursuant to the Family and Medical Leave Act, etc., “[e]mployers are ultimately responsible for ensuring that these systems comply with the law.” Benjamin W. Perry, Danielle Ochs, Keith E. Kopplin, and Zachary V. Zagger have the details.

EEOC harassment guidance. On April 29, 2024, the U.S. Equal Employment Opportunity Commission (EEOC) issued its updated Enforcement Guidance on Harassment in the Workplace. The guidance, which is not binding, has been updated to reflect recent developments in federal law, including the Bostock decision, the enactment of the Pregnant Workers Fairness Act, and changes to workplace culture, such as remote or hybrid work. Tiffany Cox Stacy, Nonnie L. Shivers, and Zachary V. Zagger have the details.

White House pressures pension funds to adopt union neutrality. The White House announced that five major pension funds had “committed to strong labor standards in their private equity investments.” According to the White House announcement, these principles include “guaranteeing the free and fair choice to join a union, freedom of association and the recognition of the rights to collectively bargain, equal opportunity, a safe and healthy workplace, and the elimination of forced and compulsory labor, including child labor.” The announcement continues, “[F]unds will encourage their portfolio companies to remain neutral when workers seek to exercise the freedom to join together in a union; and when applicable, enter into neutrality agreements with labor organizations that include voluntary or card-check recognition, reasonable timelines to first contract, and a commitment to non-interference in union organizing.”

Congressional Democrats Seek to Resurrect OSHA Ergonomics Standard. Late last week, Democratic senators introduced the Warehouse Worker Protection Act (a bipartisan companion bill is expected to be introduced by members of the U.S. House of Representatives). According to a press release issued by the bill’s chief sponsor, Senator Ed Markey (D-MA), the bill “would protect warehouse workers by prohibiting dangerous work speed quotas that lead to high rates of worker injuries and requiring companies to disclose what quotas apply to workers.” The proposed legislation would establish a Fairness and Transparency Office in the Wage and Hour Division, set restrictions on the use of productivity quotas, create a “Quota Task Force” (comprised of unions, “worker advocacy organizations,” and employees, but not employers), and create a new unfair labor practice when an employer implements a “quota that significantly discourages or prevents, or is intended to significantly discourage or prevent, an employee from exercising the rights” to collectively bargain and participate in concerted activity.

Significantly, the bill would also require the Occupational Safety and Health Administration (OSHA) to promulgate a “standard for ergonomic program management.” In late 2000, OSHA issued such a standard, but the U.S. Congress voted to rescind the standard in 2001 using the Congressional Review Act (CRA) for the first time. Pursuant to the CRA, OSHA has since been prohibited from issuing a regulation that is in “substantially the same form.” The WWPA would grant OSHA the authority to overcome this bar and promulgate a new ergonomics standard. John D. Surma and Jeff T. Leslie have the details.

Joint Employer Update. There has been a fair amount of activity of late relating to the National Labor Relations Board’s (NLRB) joint-employer rule, which was finalized on October 26, 2023. Late last week, President Biden vetoed a resolution passed by Congress that sought to rescind the rule, stating that he was “proud to be the most pro-union, pro-worker President in American history.” Republicans in the U.S. House of Representatives attempted to override the veto, but the 214–191 vote fell well short of the necessary two-thirds vote requirement. Of course, it is important to remember that the joint-employer rule is not in effect because it was struck down by the U.S. District Court for the Eastern District of Texas in early March 2024. This week, the NLRB formally appealed that decision to the U.S. Court of Appeals for the Fifth Circuit.

Better Late Than Never. This week in 1992, the 27th Amendment to the U.S. Constitution was ratified. The one-sentence amendment—which is the most recent amendment to the Constitution —reads, “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” Essentially, the amendment means that Congress can’t give itself a raise during its current session, and any raise has to take effect during a subsequent Congress. As the Buzz wrote previously, the amendment was originally proposed in 1789, and some states (Delaware, Kentucky, Maryland, North Carolina, South Carolina, Vermont, and Virginia) ratified it early on, but the push for ratification soon fizzled. The amendment was largely forgotten until 1982 when a nineteen-year-old student at the University of Texas at Austin wrote a paper for his government class about how the amendment could be ratified and subsequently launched a campaign to encourage its adoption. On May 5, 1992, Alabama became the thirty-eighth state to ratify the amendment and secure its addition to the Constitution. At 202 years, seven months, and ten days, the ratification period for the 27th Amendment is a record.


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