Our US labor/management relations team continues to track the National Labor Relations Board’s (NLRB’s) increasingly business-friendly approach in 2019. The Board’s busy year to date includes its decision in Entergy Mississippi, addressing the supervisory status of certain electric utility transmission and distribution dispatchers and resulting ineligibility to vote in a union election. This important decision is discussed further in our recent edition of Labor & Employment NOW. Moreover, the Board’s recent proposed rulemaking on union election procedures is the latest sign that the Republican-majority Board is now in high gear. As outlined in this LawFlash, employers should stay tuned to the Board’s regulatory and decisional authority in the second half of 2019. Of particular interest for the nuclear industry is the Board’s upcoming second round of rulemaking on union election procedures, as well as the final version of the NLRB’s rules on its joint employer standard to determine when an entity has an employer relationship with the employees of another business, impacting relationships such as vendors and onsite contractors.

The National Labor Relations Board (Board) published a Notice of Proposed Rulemaking and Request for Comments in the Federal Register on September 14. The proposed rule seeks to reestablish the standard for determining joint-employer status that existed before the Board’s 2015 Browning-Ferris Industries of California decision.

This is a potentially significant development for companies in the nuclear industry, particularly for those with unionized workforces. But the proposed rule is also important for nuclear companies with nonunion workforces because joint-employment issues frequently arise in whistleblower cases, in which contract employees seek to hold the utility liable under Section 211 of the Energy Reorganization Act, as well as their actual employer (the contracting company). Although the US Department of Labor (DOL)—not the Board—adjudicates Section 211 claims, DOL sometimes considers Board decisions in its adjudications. Consequently, the proposed rule, if ultimately promulgated, will likely inform future Section 211 cases.

Employers, including those in the energy industry, should note that on November 22, a judge in the US District Court for the Eastern District of Texas issued a preliminary injunction halting on a national basis all but a few parts of the US Department of Labor’s (DOL’s) salary basis requirement for the primary overtime exemptions that were scheduled to take effect December 1. For as long as this injunction remains in effect, the old salary basis test ($455 per week) for the white collar exemption remains in effect.

Employers need not increase employees’ salaries on December 1 to continue to qualify for the executive, administrative, professional, and computer professional exemptions. However, employers should be ready to comply with the new regulations on very short notice because they could take effect immediately in the event that the injunction is lifted at any time after December 1. Furthermore, the court’s ruling has no effect on state and local law overtime exemptions, so employers will need to continue to comply with all requirements under those laws, some of which already have in place salary levels higher than the existing federal level. Read our full LawFlash for more details: Texas Court Enjoins Most of DOL's New Overtime Regulations.