Pregnant Workers Fairness Act (PWFA)

This Federal law went into effect June 27, 2023, and provides protections for employees and applicants “who have known limitations relating to pregnancy, childbirth, or a related medical condition,” by requiring employers to provide them reasonable accommodations (absent an undue hardship on the employer’s business). In general terms, “Reasonable accommodation” parrots the definition in the ADA, which defines it as “a modification or adjustment to a job or the work environment that enables an employee with a disability an equal opportunity to successfully perform a job.” The Equal Employment Opportunity Commission (EEOC) will soon issue specific regulations to include “examples of reasonable accommodations.” The EEOC has already indicated what are examples of “reasonable accommodations,” including:

  • The ability to sit.
  • The ability to drink water.
  • Access to closer parking.
  • Flexibility in work hours.
  • The provision of “appropriately sized uniforms and safety apparel”.
  • Additional break time allowances for bathroom use, eating, or resting.
  • Use of leave to recover from childbirth.
  • Excusal from “strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy”.

In sum, employers are barred under the PWFA from:

  • Requiring covered employees to “accept an accommodation other than any reasonable accommodation arrived at through the interactive process”.
  • Denying “employment opportunities” to covered employees “based on the need” to “make reasonable accommodations”.
    • Requiring covered employees “to take leave, whether paid or unpaid, if another reasonable accommodation can be provided”.
    • Taking “adverse action in terms, conditions, or privileges of employment against” covered employees requesting reasonable accommodations.
    • Retaliating against employees for reporting or opposing unlawful discrimination under the PWFA.

Expanded Federal Overtime (Proposed)

The U.S. Department of Labor (DOL) on August 30, 2023, proposed a new rule to increase the minimum salary requirements for the “white collar” exemptions (executive, administrative, and professional) from minimum wage and overtime pay requirements under the Fair Labor Standards Act (FLSA). The rule would allow workers earning up to $55,000 a year eligible for overtime. Presently, workers who earn more than $35,568 annually do not qualify for overtime. “Overtime” is defined by the FLSA as 1.5 times one’s hourly pay rate after working more than 40 hours per week. The DOL also proposes automatic updates to these salary thresholds every three years to reflect current earnings data. It is unclear whether or when this proposed rule will be implemented, as the DOL will likely see lawsuits in response, challenging the agency’s authority to impose the salary threshold increase, as well as its authority to implement automatic updates to those thresholds (which has never happened before).

California’s “white collar exemption” is already more generous to workers than the DOL proposed rule. If you earn under $68,480 in California and work for a company with 25 or more employees, you are considered “nonexempt.” Nonexempt employees in California are paid on an hourly basis and are therefore also known as “hourly” workers. Under California law, nonexempt employees are entitled to minimum wage ($15.50/hour), overtime pay, and rest and meal breaks.

Union Voting

On August 25, 2023, a National Labor Relations Board (NLRB) decision paved the way for a union to represent employees without a formal vote. The decision (Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130) stemmed from a case involving a construction materials company, Cemex, and the Teamsters union, which was seeking to organize a bargaining unit consisting of Cemex’s drivers. Most of Cemex’s drivers signed authorization cards signaling their desire for the Teamsters to serve as their bargaining representative. The Teamsters then petitioned for an NLRB election, which the Teamsters lost 179-166. However, the NLRB found that Cemex management engaged in unfair labor practices (ULP), including threatening wage freezes, job losses, reduced benefits, and discharging a driver for union activity. Typically, in a scenario where the union lost the vote, a second election would be held. Here, however, the NLRB held that if an employer commits ULP during a campaign significant enough to require the setting aside of an election, the NLRB will issue a “bargaining order” rather than a second election. A bargaining order is issued by the NLRB and requires the employer to bargain with the union without an election, which can be a lengthy and litigious process.

This is a significant change in favor of unions. The NLRB previously allowed employers to refuse to accept evidence of majority support of a union and required that the union petition for a representation election. The NLRB stated, “[t]he Cemex decision reaffirms that elections are not the only appropriate path for seeking union representation, while also ensuring that, when elections take place, they occur in a fair election environment…” The NLRB further defended the ruling, stating that while an employer has the right to challenge a union’s claimed majority via the election process, it is not allowed to abuse that process. The National Right to Work Foundation, which represents workers who oppose unionizing, said the ruling will lead to abuse, remove the protections of secret ballot elections, and give “a blank check” to unions to force workers into their ranks.

TALG will continue to keep its clients updated on all legal matters affecting them. We invite you to contact us with any questions regarding these issues.