Compliance

Legislative lowdown: NLRB rulings, DOL overtime

The NLRB rules that federal labor law protects employees who advocate for non-employees, while DOL seeks to expand overtime.
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Francis Scialabba

· 3 min read

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The National Labor Relations Board (NLRB) issued a number of decisions in the weeks before Democratic member Gwynne Wilcox’s term expired, seemingly part of broader effort by General Counsel Jennifer Abruzzo to overturn certain precedents. Wilcox has since been sworn in for a second term, but HR Brew is still unpacking these recent decisions, including a ruling concerning advocacy for non-employees.

Elsewhere in Washington, DC, the Department of Labor (DOL) issued a proposed rule that would extend overtime to some 3.6 million workers. Though the rule is likely to be challenged in court, it’s not a bad idea for HR pros to take a look at their payroll should the protections take effect in the future.

NLRB rules workers may advocate for non-employees under labor law. A majority of NLRB members ruled that federal labor law protects employees who advocate for non-employees, such as interns, in an Aug. 31 decision. The case concerned an employee of the American Federation for Children, a conservative “school choice” organization, who advocated to her coworkers that their employer rehire a former colleague who was waiting for her work authorization status to be renewed. The employee, Sarah Raybon, allegedly called her manager “racist” over concerns the colleague wasn’t being rehired.

The board ruled Raybon’s actions constituted protected concerted activity under the National Labor Relations Act (NLRA), as she was acting for the “mutual aid or protection” of other employees at the organization. The ruling overturned a Trump-era decision that found an Amnesty International employee was not protected by the NLRA when they signed a petition calling for the organization to pay interns.

“The previous Board in Amnesty International failed to recognize that ‘mutual aid or protection’ easily covers situations where employees extend help to nonemployees, especially those who work alongside them,” NLRB Chairperson Lauren McFerran said in a statement.

Following the decision, “employers should exercise extreme caution when disciplining employees who have participated [in] group advocacy,” regardless of the work status of those who would benefit, attorneys with law firm Foley & Lardner wrote in a Sep. 11 post.

DOL proposes rule on overtime protections. The DOL issued a proposal on August 30 that would extend overtime to salaried employees in executive, administrative, or professional (also known as “white-collar”) positions who earn less than $1,059 per week, or about $55,000 annually.

Employers in sectors that tend to hire low-wage, salaried workers should pay special attention to the DOL rule. Agriculture, leisure and hospitality, and public administration are among the industries with the highest shares of workers potentially affected by the proposed overtime requirements.

Though the rule is likely to be challenged in court, according to SHRM, HR can prepare by asking current salaried employees to track their hours, and prepare to reclassify these employees as hourly workers if they can’t afford to bump up their current pay to meet the overtime-exempt threshold.

Quick-to-read HR news & insights

From recruiting and retention to company culture and the latest in HR tech, HR Brew delivers up-to-date industry news and tips to help HR pros stay nimble in today’s fast-changing business environment.