Category: Workforce Trends

Secretary of Labor Nominee

Trump Surprises with Proposed Secretary of Labor Nominee

In a move few saw coming, President-elect Donald Trump announced Friday that his Secretary of Labor nominee is Republican Representative Lori Chavez-DeRemer of Oregon. Chavez-DeRemer is a politician with a track record of siding with both labor and business interests.

Chavez-DeRemer’s nomination has sparked significant attention due to her co-sponsorship of the Protecting the Right to Organize (PRO) Act—a bill that would dramatically expand labor rights and weaken right-to-work laws in nearly 30 states. Her cross-aisle appeal, exemplified by support from Teamsters President Sean O’Brien and prominent Democrats like Senator Patty Murray, stands in stark contrast to Trump’s historically pro-business labor agenda.

A Bipartisan (?) Pick with Union Support

Teamsters leader Sean O’Brien lauded the choice for Secretary of Labor nominee. He noted Trump’s outreach to his union last year and framed Chavez-DeRemer as a unifying figure for workers and businesses. “Now let’s grow wages and improve working conditions nationwide,” O’Brien said, signaling optimism about the nominee’s potential impact.

Chavez-DeRemer, a former mayor of Happy Valley, Oregon, and entrepreneur in the healthcare field, lost her reelection bid earlier this month but left Congress with a distinct reputation. As one of the few GOP members to align with progressive labor goals, her nomination has already garnered praise from unions, including the National Education Association and the American Federation of Teachers.

Reaction from Conservatives

The announcement has provoked backlash from influential conservative groups. Americans for Prosperity, a staunchly pro-business organization, criticized the nomination, arguing it betrays Trump’s previous labor policies and risks alienating his base.

“Trump’s record on labor policy was so strong, and he didn’t flip on a single labor issue yet still improved with union voters,” said AFP’s Akash Chougule. “He completely undid that and undermined his own agenda and movement by picking a teachers union hack for Labor. Senate GOP should reject this nomination.”

Chavez-DeRemer’s pro-labor stance—embodied in her support for legislation like the Public Service Freedom to Negotiate Act—has drawn ire from right-to-work advocates who view her as out of step with Republican orthodoxy.

Immediate Challenges for the Department of Labor

If confirmed, Chavez-DeRemer will face several pressing issues at the Department of Labor. Among the most urgent is the long-awaited update to the Fair Labor Standards Act (FLSA) salary exemption test. The Biden administration proposed increasing the salary threshold for exempt employees—potentially expanding overtime eligibility for millions of workers. A federal court recently struck down the rule, and the new administration will have to decide whether to appeal or walk away from the rule. Business groups have expressed concern over the financial burden of such changes, while labor advocates argue that the update is long overdue to ensure fair pay for workers.

Chavez-DeRemer will also have to address broader labor market challenges, including:

  • Modernizing worker classifications to reflect the evolving gig economy, a contentious issue that pits tech companies against labor advocates.
  • Reevaluating federal regulations on independent contractors and joint employers, key concerns for both unions and businesses.
  • Enforcing compliance with labor standards while balancing business concerns about regulatory overreach.

Her ability to navigate these challenges will define the department’s trajectory under the new administration and could influence how workers and businesses view Trump’s labor policies moving forward.

What This Means for Trump’s Labor Agenda

This nomination signals a potential shift in Trump’s labor policy approach. While his first term focused on deregulation and business-friendly initiatives under Labor Secretaries Alexander Acosta and Eugene Scalia, Chavez-DeRemer’s selection could open the door to more balanced policies aimed at addressing worker concerns.

Her ability to navigate confirmation in a polarized Senate remains uncertain. However, her potential bipartisan appeal, bolstered by endorsements from unions and some Democrats, positions her as a viable, albeit controversial, choice to lead the Department of Labor.

A Nominee with a Unique Profile

Chavez-DeRemer’s nomination follows a line of Trump labor secretaries with diverse backgrounds, but her record stands apart. A Latina entrepreneur and former mayor, she combines business experience with a legislative focus on worker rights—a combination that may redefine the Labor Department’s priorities under Trump’s second administration.

Whether this move represents a new chapter in Trump’s labor policy or a temporary departure from his traditional approach, one thing is certain: Lori Chavez-DeRemer’s nomination has set the stage for a heated confirmation battle and a possible recalibration of how the federal government balances labor and business interests.

Just One Part of the Equation

Even if Chavez-DeRemer is confirmed to head the U.S. DOL, the administration will be more business-friendly. Her views are not shared with other Republicans in Congress, making pro-union or worker amendments to federal law unlikely. Plus, the National Labor Relations Board has more direct control over much of the field of employer-union relations. Through other appointments, President Trump is still likely to effect significant rollbacks from pro-labor interpretations of the National Labor Relations Act that have stifled employers during the Biden administration.

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NYC Pet Leave

Paid Pet Leave for NYC Employees?

On October 23, 2024, a new pet leave bill was introduced before the New York City Council. The bill proposes to amend NYC’s Earned Safe and Sick Time Act (ESSTA) to allow employees to use paid sick time for the care of pets. Below is a summary of the proposal and insights on what employers should consider as this legislation progresses.

Key Provisions of the Pet Leave Bill

The proposed law, introduced by Council Members Shaun Abreu and Tiffany Cabán, expands the existing NYC sick leave to include absences related to the care of “covered animals.” Here are the essential elements:

  1. “Covered Animals” includes any animal primarily kept for companionship in compliance with local laws and service animals. This ensures a broad application, covering both household pets and certified service animals.
  2. Types of Permitted Leave: Under the new law, employees could use sick leave for:
    • Medical diagnosis, care, or treatment of an animal’s physical illness, injury, or health condition.
    • Preventive medical care for the pet.
  3. Existing Sick Leave Entitlement Remains Unchanged: The law does not increase the amount of sick leave available to employees. Instead, it adds pet care to the list of permitted uses for existing sick leave hours.
  4. Effective Date: Should the bill pass, it will take effect 120 days post-enactment, giving employers some time to adjust policies accordingly.

Implications for Employers

Policy Adjustments: Employers may need to revise their sick leave policies to explicitly include pet care as a covered absence.

Employee Documentation and Requests: As with other types of sick leave, it may be necessary to establish guidelines for requesting pet leave to prevent misuse. Unfortunately, employers don’t currently have much latitude in questioning sick leave requests.

Potential Operational Impacts: New York City has a high rate of pet ownership. Thus, the potential increase in short-term absences is worth consideration, especially for roles that require continuous coverage.

Supporting Employee Well-being: This initiative reflects a growing focus on mental health and well-being in the workplace. For employees, being able to care for their pets without the fear of losing pay or facing disciplinary action could enhance morale and reduce anxiety, particularly for those who rely on their pets for companionship. Employers should look for ways to benefit from the law. Some employers already allow pet care leave voluntarily.

Potential Pet Leave Implications Beyond New York City

The proposed pet leave bill specifically amends New York City’s ESSTA. IT would not directly apply to employees outside the City. However, New York State also has a statewide paid sick leave law modeled after NYC’s ESSTA. So, this proposal could prompt consideration of similar measures at the state level. If the pet leave bill gains support and proves effective in NYC, it may set a precedent that encourages the New York State Legislature to consider a statewide extension.

Employers across the state (and country?) should monitor this proposal as its implementation in NYC might foreshadow future legislative developments. In particular, those with locations in both New York City and elsewhere should evaluate how this potential change aligns with their broader leave policies.

Next Steps for Employers

The pet leave bill is still under consideration. However, employers should proactively evaluate their current leave policies and consider how they might integrate this potential change. By staying informed and prepared, businesses can ensure they remain compliant while demonstrating that they support their employees’ diverse needs.

As this bill advances through the New York City Council, stay updated and consult legal professionals if you need further guidance. This proposed change could set a precedent for future legislation that might even expand to other aspects of employee pet ownership.

Stay tuned for updates on the passage of this law and potential best practices for implementation!

 

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Model Freelancer Contract

NYS Model Freelancer Contract

New York State’s Freelance Isn’t Free Act took (FIFA) effect on August 28, 2024. As required by the Act, the New York State Department of Labor has developed a model freelancer contract. Although the model agreement meets the legal requirements, it has serious limitations. Accordingly, most hiring parties should consider modifying the model contract or drafting their own FIFA-compliant agreement.

Freelance Isn’t Free Act Overview

New York’s FIFA addresses non-employment relationships between a “hiring party” and a “freelance worker.” Under this law, only individuals and single-person organizations can qualify as a “freelance worker.”

When a hiring party engages a freelance worker, there must be a written contract between them.

By law, the contract must contain the following information:

  • Name and mailing address of both the hiring party and the freelance worker
  • Itemization of all services to be provided by the freelance worker
  • Value of the services to be provided
  • Rate and method of compensation
  • Date or mechanism of determining when payment will be made
  • Date by which a freelance worker must submit a list of services rendered to allow the hiring party to process timely payment

Hiring parties that don’t ensure there is a compliant contract in place risk various penalties. But the biggest risks aren’t just not having a written contract.

Purpose of the Freelance Isn’t Free Act

More than insisting on a written contract, FIFA is designed to give non-employees compensation protections similar to those of employees. Instead of typical breach of contract damages, FIFA allows freelancers to recover enhanced penalties as are available for unpaid wage claims. Consequently, hiring parties face significant liability risk when they don’t pay a freelancer in full and on time.

Click here for more on the FIFA requirements.

Components of the Model Freelancer Contract

The DOL’s model freelancer contract contains 25 numbered sections. These include identification of the parties, compensation terms, and various provisions referring to the freelance worker’s rights under FIFA. It appears the latter content goes beyond what the law actually requires.

Such additional provisions include those with the following headers:

  • Prohibition Against Waiver
  • Prohibition Against Retaliation and Discrimination
  • Violations

The template also includes the following provisions that may not be desirable (at least as written) in all contexts:

  • Intellectual Property Rights
  • Revisions
  • Termination
  • Indemnification
  • Insurance Required
  • Other Business Activity
  • Late Payment
  • Limitations on Liability
  • Confidential Information

The NYS DOL template “Freelance Worker Agreement” is available here.

Model Freelancer Contract Doesn’t Avoid Employment Relationship

By using the model freelancer contract as written, hiring parties would not only be telling freelancers how to pursue claims against them, but may also unwittingly jeopardize the independent contractor nature of the relationship.

The model contract states that “Nothing in this Agreement shall indicate the Freelance Worker is a partner, agent, or employee of the Hiring Party.” But it doesn’t specifically acknowledge that the freelancer is not an employee! Plus, the check-box, fill-in-the-blank format of other sections could result in terms that may support an employment classification.

Remember, a hiring party and worker can’t simply decide whether they have an employment relationship or not. That is always a question that could be determined by a court or government agency for various purposes after the fact. And the laws often operate on the assumption of an employment relationship (with the attendant legal consequences). Typically, the burden is on the hiring party to demonstrate that no employment exists, regardless of what the worker intended when entering into the arrangement.

Other aspects of the template agreement could also unwittingly support an employment arrangement. For example, providing an hourly pay rate and certain insurance coverages may be more typical for employees.

Better Approaches to FIFA Compliance

Ultimately, using the DOL’s model freelancer contract is probably better than not satisfying the obligation to put the terms of a freelance engagement in writing. However, hiring parties should strongly consider preparing their own agreements (with appropriate legal advice). It’s probably fair to say the DOL’s template is designed to favor freelancers. Even if not, the one-size-fits-all approach is likely to lead to problems down the road for some hiring parties.

Remember, the Freelance Isn’t Free Act and other related employment/independent contractor provisions are intended to protect workers. Any ambiguity will be resolved to their benefit. Thus, it’s critical to be intentional and cautious in drafting your independent contractor agreements (whether subject to FIFA or not).

 

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