Things you should know

NLRB: Employee - independent contractors classification, Supreme Court ruling on intentional property damage

In The Atlanta Opera, Inc., the National Labor Relations Board (NLRB) overturned its 2019 ruling in SuperShuttle DFW, Inc. and, once again, modifies the test for determining whether workers are statutory employees or independent contractors. It has returned to a multi-factor test, which makes it easier to determine that workers are covered employees who can therefore seek union representation rather than independent contractors.

In Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union No. 174, the U.S. Supreme Court ruled that the National Labor Relations Act (NLRA) does not preempt an employer's state court tort claims alleging a union intentionally destroyed the employer's property during a strike. The suit alleged the union "deliberately" staged a strike after trucks had been fully loaded with wet concrete, leaving the concrete to harden and potentially damage the trucks, allowing the ready-mix concrete company to pursue a claim against the Teamsters.

A new challenge for Minnesota employers: legalized recreational marijuana

On May 30 Minnesota becomes the 23rd state to legalize recreational marijuana. While nothing in the law prohibits employers from acting against employees who use, possess, sell, transfer, or are otherwise impaired by such lawful products while working, it does protect off-duty use, and effective August 1, 2023, the law makes substantial changes to the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA). As a result, companies must revisit their drug policies to ensure compliance with the recreational marijuana provisions of the law while safeguarding their business interests. Helpful Q & A.

CMS releases Section 111 NGHP User Guide (Version 7.2, June 5, 2023)

CMS has released key information on the Unsolicited Response File "opt-in" feature (July 2023), updates to ORM reporting, ORM termination, and HEW software.

CVSA Annual Brake Safety Week August 20 - 26

Commercial Vehicle Safety Alliance (CVSA) inspectors are set to perform announced and unannounced brake system inspections Aug. 20-26. On April 19, CVSA inspectors checked 6,829 commercial motor vehicles in the United States and Canada. The Brake Safety Day inspection resulted in 773 of the CMVs being taken out of service for brake violations.

State News

California

• The Workers' Compensation Insurance Rating Bureau (WCIRB) has published updated versions of plans, manuals, and regulations incorporating changes approved by the insurance commissioner effective Sept. 1 and posted a 2023 experience modification estimator to its website.

Georgia

• Effective July 1, there are new procedures for appealing a workers' compensation claim.

Minnesota

• The sweeping Jobs and Economic Development and Labor Omnibus Budget Bill will significantly impact employers. Among other things, it creates state-wide paid sick and safe time obligations, renders non-compete agreements unenforceable, creates additional paystub requirements for construction workers, prevents mandatory employer-sponsored meetings, and increases protections for pregnant workers. The Governor also signed a recreational cannabis law, amending the state's drug and alcohol testing laws. Laws to provide increased protection for warehousing and meatpacking employees were also enacted. Many have an immediate effect on employer policies. More information.
• Employers are required to post several new posters related to the new laws noted above.

New York

• New York City Mayor Eric Adams signed a bill to prohibit discrimination based on a person's height or weight in employment, housing, and public accommodations, with some exceptions. It takes effect November 22, 2023.
• The state Department of Labor has released along-awaited model policy on the rights of employees to express milk in the workplace. The law expanding protections for breastfeeding employees, which applies to all public and private employers in the state, regardless of size, took effect on June 7, 2023.

Tennessee

• The state's COVID-19 statute, which was set to expire on July 1, 2023, was permanently extended earlier this year. The ending of the federal COVID-19 vaccination requirements for CMS-certified healthcare facilities has added healthcare providers to the entities subject to the state's COVID-19 law, which prohibits governmental entities, schools, and local education agencies from implementing a mandatory vaccination policy. Private employers can not compel or take adverse action against employees to compel them to provide proof of receiving a COVID-19 vaccination.