Rail Worker Paid Sick Leave

Despite Congress imposing a rail agreement on rail worker unions back in December (2022) that did not include paid sick leave requested by unions, many rail companies and rail unions have now negotiated paid sick leave agreements.

Reporting suggests that CSX has so far granted paid sick leave to more than 60% of workers; Union Pacific and Norfolk Southern more than 45% of workers; and BNSF more than 30%; with 10 of 12 unions reaching agreements with these companies. In general, most of the agreements reportedly permit four days of annual paid sick leave, with the option to convert three leave days into sick leave, giving workers a total of seven sick days a year.

Sick leave has been a key sticking point with unions. In last year’s labor negotiations, unions originally asked for 15 paid sick days, but railroads only agreed to one personal day in the agreement that was implemented by an act of Congress.

Despite the new sick leave, there continue to be grumbling among rail workers about the fact that rail companies will require workers to give up leave days for sick leave, and that instead they should be given adequate paid sick leave.

(posted: 5-17-23)

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Pregnant and Nursing Mothers Protections

The Omnibus Appropriations Act of 2023 enacted at the end of 2022 included two new laws important to both pregnant workers and those who are nursing.

The Pregnant Workers Fairness Act is intended to ensure that pregnant and postpartum workers have the right to reasonable accommodations in the workplace for pregnancy, childbirth, and related medical conditions. Under the new law, employers must make reasonable accommodations for pregnant workers and job applicants, which may include light duty, breaks, or a stool to sit on, without discrimination or retaliation.

The Omnibus also included the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act, extending break time and private space protections for nursing parents. The law makes it clear that under most circumstances the time used for nursing must be paid.

(posted: 2-3-23)

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Non-Compete Agreements Proposed Rule

The Federal Trade Commission (FTC) issued (January 5) a proposed rule banning employers from requiring workers to agree to so-called “noncompete agreements.”

Noncompete agreements are generally used by companies to prevent workers from competing against the company after leaving, and these are also sometimes used to prevent the disclosure of proprietary information and secrets to other entities.

The FTC says that noncompetes “harm competition in U.S. labor markets by blocking workers from pursuing better opportunities and by preventing employers from hiring the best available talent..[and]...hinder innovation and business dynamism in multiple ways” that ultimately undermines consumers because of business concentration and resulting higher prices. The FTC cited the health care sector as an example of this outcome.

Under the proposed rule, it will be “illegal” for an employer to enter into, or attempt to enter into, a noncompete with a worker; to maintain a noncompete with a worker; and to represent to a worker, under certain circumstances, that the worker is subject to a noncompete. The rule would apply to independent contractors and anyone who works for an employer, whether paid or unpaid. Existing noncompetes would need to be rescinded, and businesses would have to actively inform workers that these are no longer in effect. Nondisclosure agreements would not be impacted by the proposed rule.

The US Chamber of Commerce is calling the proposed rule “blatantly unlawful,” saying that Congress did not give the FTC the authority to take this action; that banning such clauses overturns established state laws governing their use; and, that the proposed rule “ignores the fact that, when appropriately used” such agreements “are an important tool” in innovation and competition.

(posted: 1-5-23)

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New Tax Reporting for Gig Workers Deferred

The Internal Revenue Service (IRS) announced (December 23) that it is putting off, for one year, increased income reporting from third-party platforms used by gig workers.

The American Rescue Plan of 2021 required a lower reporting threshold for third-party payment platforms such as PayPal,Venmo and CashApp.The new threshold for business transactions is $600 per year; changed from the previous threshold of more than 200 transactions per year, exceeding an aggregate amount of $20,000.

The IRS is saying that transactions for 2022 will not need to be reported using the new thresholds, though this has nothing to do with gig workers reporting and paying the correct amount of income on their tax returns. This only has to do with what payment platforms show to the IRS that they paid gig workers. Gig workers still must properly report what they earned.

New reporting by payment platforms will now occur for transactions during 2023.

(posted: 1-5-23)

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Rail Labor Dispute

Both the House and the Senate voted to approve a measure imposing a September tentative labor agreement on rail workers. While the House passed an additional measure impose 7 annual paid sick leave days on rail companies for each union member, the Senate did not pass that action. The President signed (December 2) the base measure putting the agreement into place (that does not include additional sick leave).

President Biden had requested (November 28) that Congress intervene in contract negotiations between rail unions and companies, and impose the terms of a tentative labor agreement finalized in September. Workers in 4 of 12 rail unions failed to ratify the agreement which could result in a strike by all unions as early as December 9.

Sick leave has been a key sticking point. Unions originally asked for 15 paid sick days, but railroads only agreed to one personal day in the tentative agreement. While not the only issue of concern to rail workers, this is considered to be a major concern among most workers.

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Unions that Voted to Reject the Tentative Agreement:

Brotherhood of Locomotive Engineers and Trainmen (BLET)
Brotherhood of Maintenance of Way Employes Division (BMWED)
Brotherhood of Railroad Signalmen (BRS)
International Brotherhood of Boilermakers, Iron Ship Builders, Forgers and Helpers (IBB)

Unions that Voted to Approve the Tentative Agreement:

International Association of Sheet Metal, Air, Rail and Transportation Workers – Transportation Division (SMART-TD)
International Association of Machinists and Aerospace Workers (IAMAW)
International Brotherhood of Electrical Workers (IBEW)
National Conference of Firemen & Oilers, District of Local 32BJ, SEIU (NCFO)
International Association of Sheet Metal, Air, Rail and Transportation Workers – Railroad, Mechanical and Engineering Department (SMART-MD)
Transport Workers Union of America (TWU)
American Train Dispatchers Association (ATDA)

(posted: 12-2-22)

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Gig Workers as Employees - Proposed Rule

The Department of Labor (DOL) announced (October 11) a proposed rule to enable a broader set of factors for determining the employment status of so-called “gig workers” that is likely to undermine the ability of some companies to treat such workers as independent contractors instead of employees.

Under the proposal, groups of gig workers could be considered employees of a company after a “totality of circumstances analysis,” that the Department says is consistent with “longstanding judicial precedent” relied upon for determining the classification of workers under the Fair Labor Standards Act. The classification of a worker as an employee of a business means that he/she could receive within current Federal and state laws guarantees on minimum wages and overtime, among other types of employee protections.

This proposed rule would formally replace one that was put into place during the final days of the Trump Administration. That prior rule was intended to minimize the factors considered for determining employee status by elevating certain factors above others: i.e., the nature and degree of control that a worker exercised over key aspects of the performance of the work and the worker’s opportunity for profit or loss based on the exercise of initiative and/or management of investment. The prior rule, if enforced, would have had the effect of permitting most gig workers to remain as independent contractors.

If the new rule is finalized in its current form, DOL will be able to make employee classification determinations based on a multitude of factors, some of which could include the extent to which services rendered are an integral part of the principal's business, the permanency of the employment relationship, and the nature and degree of employee control by the company, among other things.

The proposed rule will undergo a comment period for most of the rest of 2022. Any final rule would likely not be completed by DOL, and implemented, until later in 2023 at the earliest. 

A process within DOL for making each individual employee group determination, and administratively adjudicating each decision, could take years.

(updated: 10-11-22)

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Benefits Changes to Military Personnel & Family

The Department of Defense announced (September 23) measures to improve the economic conditions of military personnel and families.

Among the key actions:

• Institute automatic increases starting in October in the Basic Allowance for Housing (BAH) for active duty Service members in the 28 Military Housing Areas (MHAs) experiencing an average of more than 20 percent spike in rental housing costs this year above this year’s BAH rates. The 28 MHAs are: Vandenberg AFB, CA; Twenty-Nine Palms MCB, CA; San Diego, CA; Dover AFB/ Rehoboth, DE; Patrick AFB, FL; Miami/Fort Lauderdale, FL; Orlando, FL; West Palm Beach, FL; Volusia County, FL; Fort Myers Beach, FL; Kings Bay/Brunswick, GA; Maui County, HI; Chicago, IL; Boston, MA; Cape Cod – Plymouth, MA; Martha’s Vineyard, MA; Brunswick, ME; Coastal Maine, ME; Fort Leonard Wood, MO; Helena, MT; Wilmington, NC; Northern New Jersey, NJ; Newport, RI; Providence, RI; Beaufort/Parris Island, SC; Knoxville, TN; Houston, TX; Quantico/Woodbridge, VA.

• Pay a Basic Needs Allowance (BNA) starting January 2023 for active Service members with dependents who apply and qualify based on gross household income.

• “Fully fund” commissaries to ensure that users can achieve “at least” 25% savings below local market levels.

• Improve the supply and access to child care with a variety of actions such as expanding programs such as the Military Child Care in Your Neighborhood program; expanding Military Child Care Development Center hours; and standardize a minimum 50 percent discount for the first child of CDP direct-care workers, helping to attract more talented staff and to increase capacity.

• Increase spouse employment opportunities with actions such as accelerating the development of seven additional occupational licensure interstate compacts with organizations representing multiple professions; increase use of non-competitive, direct hiring authorities for military spouses in the Department of Defense and further expand remote work and telework options; and launch a new career-accelerator pilot initiative that will match military spouses with paid private-sector fellowships in a variety of career paths.

(updated: 9-23-22)

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State Pay Gap Transparency Legislation

The State of California passed legislation (August 30) requiring all employers based-in, or hiring in, California to post salary ranges for all job listings. New York State also passed this year a proposal similar to the California legislation. Prior to recent action this year, Pew found that 17 states had transparency laws.

The California legislation will also require companies with more than 100 employees to post median gender and racial pay gaps. Other state laws do not have such a requirement.

(updated: 9-4-22)

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Labor Market Conditions

The Job Openings and Labor Turnover Survey (JOLTS) for June found that the number of job openings in the United States decreased to 10.7 million, a -600K or -6.6% decline from May. It is the largest monthly decline on record apart from the pandemic lockdown months of April and May 2020. This could reflect a softening of the job market, potentially in line with recession concerns.

On the other hand, the report indicates that statistically, there are 1.8 available jobs being offered today for every one person looking for work. Moreover, the number and rate of business layoffs were largely unchanged from May.

(updated: 8-3-22)

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Construction Workers & PLAs

The President signed and Executive Order (December 4, 2021) requiring the use of Project Labor Agreements (PLAs) on large-scale projects funded by the Federal Government. PLAs are negotiated labor agreements between trades and a lead contractor for a project that typically results in the use of union labor, with the contractor getting assurance that labor will remain in place for the duration of the project.

Under the EO, large-scale projects are those costing $35 million or more. It is estimated that the EO will apply to roughly $262 billion in federal construction contracts affecting nearly 200,000 workers. This EO, however, will not impact the vast majority of Federally-funded infrastructure in that most funding is distributed in grants to State agencies to whom PLA requirements will not apply.

(updated: 2-5-22)

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Federal Minimum Wage - Private Sector

A proposal to raise the Federal minimum wage to $15 per hour was considered by the Senate as part of COVID 19 relief legislation (March 2021), but the proposal failed. Advocates vowed to find other legislative opportunities to enact a $15 per hour level, and the Biden Administration stated it supports the change. It does not appear that this matter will be considered in the current (117th) Congress.

The current Federal minimum wage is $7.25 per hour, though this level can be reduced to as low as $2.13 per hour for workers receiving tips. The National Conference of State Legislators (NCSL) maintains summary data on  State minimum wage laws. Currently, 29 States have minimum wages above Federal law levels.

(updated: 2-2-22)

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Federal Minimum Wage - Federal Employees

The Federal Office of Personnel Management (OPM) issued a memo (January 21, 2022) implementing President Biden's decision to establish a minimum wage of $15 for Federal employees. Most employees that will benefit from this policy are an estimated 50K employees in the Department of Defense and 3,800 custodial workers in the VA. OPM estimates there are about 67, 000 Federal workers that currently make less than $15 per hour out of a 2.2 million Federal workforce.

(updated: 2-2-22)

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