New report offers insight into recent federal agency actions that impact employers

A tight labor market, the rise of artificial intelligence, and lack of advancement of workplace-related legislation at the federal level are key challenges facing employers, according to Littler’s Workplace Policy Institute (WPI®) — the government relations and public policy arm of Littler, a leading global employment and labor law practice representing management.

The company’s “2023 Labor Day Report” examines the current state of the U.S. labor market and provides insight into how policymakers and employers can approach challenges facing today’s workforce.

“This year’s report finds signs that the labor market is loosening, but employers are still navigating a range of challenges that impact hiring and labor force participation,” Michael Lotito, Littler shareholder and co-chair of WPI, said in a statement. “At the same time, Congressional gridlock at the federal level has led to ramped-up federal regulatory activity and a growing patchwork of state-level employment laws. With the world of work at an inflection point, now is the time for workers, employers, educators, and policymakers to reevaluate what is needed to make the modern workplace thrive.”

“With a divided government in D.C., we have seen more than 420 state and local-level bills that have been enacted in the labor and employment space since we published our last Labor Day Report in September 2022,” added Shannon Meade, WPI’s executive director.

“The topics of interest at the state and local levels run the gamut and include workplace freedom of speech, reproductive health, the use of AI in personnel decisions, pay transparency and regulation of noncompetition agreements. The sheer volume of new legislation, combined with the fact that regulations addressing the same topic are not always consistent with one another, creates a massive compliance burden for employers.”

The 57-page report is divided into four sections and explores:

• The current state of the U.S. workforce and the increase in union organizing efforts.

• How the U.S. Supreme Court has revised employment law this year and the major questions heading into the 2024-25 term.

• The state legislatures that have been most active this year and the trending topics for new local laws.

• The federal agency actions that have been most significant for employers this year and what to expect from key government agencies in the months ahead.

Specifically, the report highlights significant National Labor Relations Board decisions over the past 12 months that indicate “the continued push by [NLRB General Counsel Jennifer A.] Abruzzo to rework U.S. labor law,” meaning that employers “more than ever should be prepared for more pro-union rulings and changes to longstanding Board precedents affecting both union and non-union workplaces.”

Meanwhile, the Equal Employment Opportunity Commission is dealing with thousands of charges of discrimination in the wake of the COVID-19 pandemic, vaccination mandates, and return-to-work requirements, according to the report — not to mention the rise of AI in employee decision-making, plus sexual orientation and gender identity issues.

Related: Medical credit card crackdown: Feds zeroing in on regulations to protect patients

The report also cites a handful of regulatory advances made by the Department of Labor, including a proposed rule that would increase the minimum salary an executive, administrative, or professional worker must be paid to be considered “exempt” from minimum wage and overtime requirements under the Fair Labor Standard Act (commonly referred to as the “white collar overtime exemption”), guidance on tracking hours worked by employees who telework, and guidance on the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), which expanded the Fair Labor Standards Act to provide lactating employees additional workplace protections.

The department also is expected to issue a stricter rule for classifying workers as independent contractors under the Fair Labor Standards Act this fall.