From the NLRB to EEOC, the biggest compliance changes of 2023

It’s been quite a year for compliance pros, as decisions taken by the National Labor Relations Board (NLRB) opened up an easier pathway for workers to unionize, while pay transparency laws in some states and regions spurred companies to share more information about their compensation practices.

HR Brew analyzed a few of the biggest regulatory changes, and how they’ve changed the way people professionals do their jobs.

NLRB reverses Trump-era policies. Under General Counsel Jennifer Abruzzo, an appointee of President Joe Biden, the NLRB has reversed a number of Trump-era policies, as well as instituted “sweeping changes” to labor law, Heather MacDougall, a partner at law firm Morgan Lewis who counsels clients on labor and employment issues, told HR Brew.

One highly anticipated decision in Cemex Construction Materials Pacific, LLC requires employers to bargain with a union even if no election is held. Under a new framework introduced by the NLRB on Aug. 25, workers can vote to join a union by signing authorization cards (also known as a “card check”), rather than holding a formal election. If a majority of employees vote to be represented by a union, an employer must recognize and bargain with the union, or “promptly file” a petition seeking an election, the NLRB ruled. MacDougall called the decision a “watershed moment.”

This decision, coupled with a new NLRB rule designed to ensure union elections are held more quickly, will shorten the time frame employers are afforded to consider union petitions, MacDougall said. Organizations, she added, “shouldn’t be waiting until they get that request, that demand, for [union] recognition. It should be something that they have their eye on, because of this changing landscape.”

In a separate decision taken on Aug. 2, the labor board overruled a Trump-era rule that made it easier for employers to maintain policies restricting workers’ ability to, for example, record meetings or use social media.

Under the new standard, “if an employee could reasonably interpret the rule to have a coercive meaning,” then NLRB General Counsel Abruzzo will have met the burden to prove it has a “reasonable tendency” to chill workers from exercising their federal labor rights, per the NLRB’s decision.

In light of decisions like this one, “employers should really analyze all of the facts when making any disciplinary decisions for individual misconduct,” as it could be deemed as protected concerted activity, MacDougall said.

New protections for pregnant and nursing employees. Two new laws went into effect that extend protections for new and expecting parents.

The Pregnant Workers Fairness Act (PWFA), which went into effect on June 27, states that employers with 15 or more workers must provide reasonable accommodations to employees who are pregnant, have given birth, or are experiencing related medical conditions, unless such accommodations pose an “undue hardship” to the employer.

Under the PWFA, pregnant workers may request accommodations such as closer parking, flexible hours, and leave or time off to recover from childbirth, according to the Equal Employment Opportunity Commission (EEOC).

Separately, the PUMP Act, which went into effect on April 28, requires employers to grant employees a “reasonable break time” each time they have to express breast milk for the first year that they’re nursing. The protections, which are included in an amended version of the Fair Labor Standards Act (FLSA), also require employers to give nursing workers a place to pump that is shielded from view, free from intrusion, and available each time the employee needs it.

Nearly all employees covered by the FLSA are entitled to PUMP Act protections, according to the Department of Labor, which enforces the law. Employers with 50 or fewer employees may be exempt from the requirements if they can demonstrate they would constitute and undue hardship.

Pay transparency takes effect across the US. One-half of job postings on the website Indeed included wage or salary information as of August, thanks to pay transparency laws that have taken effect across eight states and several jurisdictions. California, Washington, and Rhode Island are among the states that enacted pay transparency requirements in 2023, while Hawaii and Illinoisi passed laws that will take effect in 2024 and 2025 respectively.

Over the last decade or so, legislators have sought to address these pay disparities with laws banning employers from asking about salary history, as well as policies requiring companies to report pay data broken down by role, sex, and race/ethnicity. Pay transparency laws are part of a second wave of legislation that specifically focuses on achieving equity, Helena Almeida, vice president-counsel at ADP, previously told HR Brew.

In light of the wage of new legislation MacDougall said HR pros should be conducting internal pay audits, investigating their pay practices, and taking steps to remediate inequities if necessary.