The new year will bring some big changes in workplace law, labor attorneys at Fisher Phillips predict.
For instance, the law firm expects the Department of Labor’s Occupational Health and Safety Administration to continue to be “aggressive” in 2023. In September, OSHA tightened the enforcement policies and procedures for its Severe Violator Enforcement Program.
“A nationwide referral under the SVEP can lead to substantial costs and OSHA inspections at company facilities across the country, so it is important to remain vigilant in carefully reviewing and responding to OSHA citations,” JDSupra reported at that time. “OSHA’s revised SVEP makes it clear that aggressive enforcement and substantial penalties remain a primary objective for the agency.”
Going forward, according to Fisher Phillips, “the odds of OSHA inspecting your workplace in 2023 are higher than ever. And when it does, anticipate that it will issue administrative subpoenas, both to produce documents and provide testimony.”
Additionally, the experts predict that the Biden administration will require all state-run OSHA plans to align penalties with federal OSHA.
“This will come as quite a surprise to employers in states that have grown used to a local discount — and will lead to intense litigation and sparring over the size of penalties when workplace accidents occur,” the attorneys cautioned.
Also, they said, a proposed rule issued by the Labor Department calls for more strictly limiting how healthcare and other employers classify workers who are paid on an hourly basis.
“Misclassification is a serious issue that denies workers’ rights and protections under federal labor standards, promotes wage theft, allows certain employers to gain an unfair advantage over law-abiding businesses, and hurts the economy at-large,” the DOL said in a press release announcing the proposed rule change.
Therefore, according to Fisher Phillips, employers might see an uptick in independent contractor audits and litigation.
The attorneys also predict that 2023 will bring big changes in labor relations, especially with the National Labor Relations Board’s proposed “joint employer” rule expected to be finalized in August.
Regarding overtime pay, they also expect the DOL to take a look at increasing the salary threshold for exempt employees from the current rate of $684 a week to somewhere around $900 to $1,000 a week.
And contingent work arrangements are expected to continue an upward trend this year.
“Both businesses and workers will push for expansion in 2023. Two factors will ensure we see the momentum in the coming year: The talent pool of continue to gravitate towards contingent work arrangements in a big to escape traditional employment models, and businesses will continue to embrace the flexibility afforded to them by retaining diverse categories of workers,” wrote attorney John Polson of Fisher Phillips’ professional employer organization and staffing industry group.
