Congress has approved the Speak Out Act, which would make unenforceable pre-dispute non-disclosure and non-disparagement clauses in cases of sexual assault and sexual harassment. The Department of Labor did not meet its October deadline to issue proposed regulations updating the overtime salary basis threshold under the FLSA. Several federal agencies have issued a military employment discrimination resource, and voters in two states approved minimum wage increases.
Speak Out Act Passed by Congress – The Senate and House of Representatives passed the Speak Out Act (S. 4524), which was introduced by Senator Kirsten Gillibrand (D-NY). The bill would make pre-dispute nondisclosure and non-disparagement clauses concerning sexual assault and sexual harassment unenforceable. The bill had bipartisan support, passing the Senate by unanimous consent and by a vote of 315 – 109 in the House of Representatives.
The bill had the support of the Biden Administration, which in a letter expressing strong support stated, “Workers should not be silenced in the face of workplace sexual harassment and assault, or face retaliation for coming forward to report such abuse. Transparency is the best way to hold employers and perpetrators accountable. Prohibiting the use of pre-dispute NDAs and non-disparagement clauses will increase access to justice and make the workplace safer for everyone.”
Earlier this year, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which invalidated mandatory arbitration agreements in these cases. President Biden is expected to sign the Speak Out Act.
Overtime Regulation Delayed – In the April 2022 semi-annual regulatory agenda, the U.S. Department of Labor (DOL) advised that it planned to issue proposed regulations in October updating the overtime salary basis threshold to qualify as exempt under the Fair Labor Standards Act (FLSA) as an administrative, executive, or professional employee. October ended without the proposed regulations being issued. The current salary basis threshold is $684 per week or $35,568 per year and took effect on January 1, 2020.
Secretary of Labor Marty Walsh had indicated previously that he thought the salary basis threshold was too low and as part of the review, the Labor Department will consider whether regular and automatic updates are needed. In 2016, the Labor Department under President Obama had proposed a salary basis threshold of $913 per week or $47,476 per year, which was invalidated by a District Court and withdrawn by the Trump Administration.
Federal Agencies Issue Military Employment Discrimination Resource – The Equal Employment Opportunity Commission (EEOC), the Office of Federal Contract Compliance (OFCCP), the U.S. Department of Labor Veterans’ Employment and Training Service, and the U.S. Department of Justice Civil Rights decision have jointly issued a resource document, “Protections Against Employment Discrimination for Service Members and Veterans,” describing federal protections from unlawful employment discrimination against service members and veterans. According to Charlotte A. Burrows, EEOC Chair, “This document clearly explains that they are protected from discrimination because of their military service, veterans’ status, disability or other reasons, such as their race, religion, national origin, sex (including pregnancy, sexual orientation or gender identity), age, or genetic information.”
According to the issuing agencies, the document details federal laws and other authorities that provide workplace protections specific to service members and veterans. This is the first time a single publication has been issued that will “help veterans and service members determine which laws and federal agencies are responsible for enforcing their workplace rights and where to seek assistance if they believe those rights have been violated.”
Voters Consider Minimum Wage Increases and Collective Bargaining Rights – With the federal minimum wage remaining at $7.25 per hour since 2009, voters in the recent election approved minimum wage increases in both Nebraska and Nevada. In Nebraska, the hourly minimum wage will be increased by $1.50 per year during the next four years until it reaches $15 per hour in 2026 and will be indexed based on the Consumer Price Index thereafter. In Nevada, the hourly minimum wage will increase from $10.50 to $12 by July 2024. The ballot measure also removed a provision that allowed employers who offer health benefits to pay a minimum wage of $1 per hour less than an employer that doesn’t offer health insurance benefits. The annual adjustments to the minimum wage based on cost-of-living increases was removed but the legislature will be allowed to set increases beyond the constitutionally mandated minimum.
Collective bargaining was also on the ballot in two states. A guarantee that workers have the right to organize and bargain collectively with their employers was added to the Illinois state constitution while in Tennessee a measure prohibiting employment contracts that require union membership was approved by voters.
Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at firstname.lastname@example.org.