Workforce Policy Trends to Watch in 2023

Stalled Congress Equals Administrative Overdrive

In 2023 and throughout the 118th Congress there will be a change in direction on the workforce policy front when it comes to legislation.

First and foremost, the new Republican majority in the House will effectively end any possibility that harmful proposals like the PRO Act will be passed, or even voted on in either chamber. The divided Congress will curtail action on most issues, but the predictably partisan nature of labor politics will push substantive activity to the Administration.

This leads us to our second shift – President Biden will accelerate his administrative actions to enact major policy changes through the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), the Federal Trade Commission (FTC) and likely most impactful to retail, the National Labor Relations Board (NLRB). Over the next twelve months, there are several known knowns of what regulatory actions are rapidly coming down the road.

Here’s what to expect:

The Federal Trade Commission (FTC) recently published a proposed rule severely restricting the use of non-competes. While this rulemaking may not be finalized in 2023, there will be plenty of action, including regulatory comments by RILA, through the year.

Further, we expect the NLRB to issue several decisions in some key cases in the first quarter of 2023:

  • The NLRB will finalize a decision in a case entitled Atlanta Opera that will seek to severely limit the ability for individuals to be classified as independent contractors.
  • In addition, the NLRB will rule in Stericycle that neutral handbook policies that address workplace conduct will be deemed violations of the Nation Labor Relations Act (NLRA) as an undue infringement of employee rights.
  • We also expect the NLRB to issue a final joint employer rule in August.
  • The NLRB and its general counsel continue to pursue many other issues ranging from employer speech, secret ballots and uniform policies that infringe upon established workplace rules.     

Continuing our journey into the future, we know the Department of Labor will issue a proposed rule raising the salary threshold for overtime exemption in May as well as publish its final rule limiting independent contractor classification in June.

Finally, we can expect several known unknowns with the EEOC. Currently, President Biden has not successfully filled the Commission with his nominees. However, the larger Democratic majority in the Senate will prioritize confirmations to grant full authority to make changes at the EEOC. Top issues from Chairwoman Burrows focus on artificial intelligence, pay data reporting and an aggressive enforcement and litigation approach by the general counsel.

Ultimately, retailers should be prepared for an active Administration across all areas of workforce policy. RILA is prepared to engage in advocacy on the Hill, public comments and in litigation, if necessary, to mitigate the most harmful aspects of these policy changes. Look out for more information as we learn more about the regulatory landscape and please reach out to VP of Workforce Evan Armstrong with any questions.

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