A number of rules and developments on the employment and labor front are facing foundries in 2024. AFS has weighed-in on several of these rulemakings. Things to watch and plan for now include:

Proposed changes to overtime requirements. Already in the works is a new DOL overtime rule on the exempt salary level. On August 30, 2023, the DOL announced it intends to significantly raise the exempt salary threshold. Employers might want to start planning for compliance now:

• Review pay practices and create a list of employees who might be affected.
• Think about who will need to be converted to nonexempt status.
• Ensure exempt employees meet the duties test.
• Develop a training plan for managers and newly nonexempt employees regarding scheduled hours and tracking time.

Federal action on AI. Guidance may be issued but probably not regulations.

Noncompete agreements. If the FTC does not invalidate non-compete agreements, the NLRB likely will. An exception to protect trade secrets likely will be very narrow.

Compensatory damages in unfair labor practices cases. The NLRB hasn’t awarded damages yet but will likely start.

Attempts to nullify class and collective action waivers in arbitration agreements by the DOL and NLRB.

 “Chevron deference.” The decision would reduce the deference courts apply to federal agencies’ interpretation of their statutes.

OSHA will begin referring significant workplace safety matters to federal and state criminal prosecutors. OSHA has been building a database of willful and repeat offenders.

Revised race/ethnicity reporting. The Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP) may include a category for those of Middle Eastern descent. They are currently categorized and reported as White/Caucasian.

Cal/OSHA Tightens Rules on Workplace Lead Exposure

The California Occupational Safety and Health Standards Board voted 5 to 2 on February 15 to tighten its rules on lead in both general industry and construction. The new regulations, the most stringent in the nation, will lower the permissible exposure limit (PEL) for lead from 50 micrograms per cubic meter of air to 10 µg/m3, an 80% reduction, and the action level (AL) from 30 µg/m3 to 2, a 93% drop. The rationale for these revisions was that existing requirements are based on more than 40-year-old lead toxicity information and medical and epidemiological data. AFS submitted comments to Cal/OSHA in April 2023 urging the agency provide more flexibility including allowing the use of a mix of personal respirators, vacuum systems attached to equipment, frequent cleaning, and building ventilation. 

Cal/OSHA maintains that lower blood levels can be primarily achieved for indoor work by using ventilation systems to clean the air. Employers will be required to implement a series of changes to their workplace setups and procedures to bring down airborne exposure as much as is feasible. But if measures such as improving ventilation and dust control don’t get lead levels below the state limit, employees would be allowed to wear respirators as well. 

Employers are provided one year to make physical building changes, such as adding showers and clothing changing rooms. Under the medical surveillance provision, an additional exception was included: “Initial blood lead testing is not required for an employee who is not, and is not reasonably expected to be, exposed to lead at or above the action level for 15 or more days in any 12 consecutive months, and who is not exposed on any day above 20 µg/m3 as an 8-hour TWA, without regard to respirator use.”  

The revisions now go to the Office of Administrative Law for final approval and an effective date. Cal/OSHA’s Division of Occupational Safety and Health Deputy Chief stated that implementation will be delayed until January 1, 2025. The delay is meant to provide employers additional time to conduct exposure assessments and monitoring for their employees.

At the federal level, the Occupational Safety and Health Administration has taken some steps, proposing to lower lead levels that would require a worker’s removal from their facility, though no proposed rule has yet been released. The federal agency is also likely to consider in the future making changes to its lead standard, including changes to the allowable levels of airborne lead. AFS will continue to provide resources and provide a more detailed overview of the new rules.