Seemingly every year, there’s some new labor law that changes the compliance landscape. Employment law in 2024 is set for changes and with elections on the horizon, there may well be even more to come.
Recent legislative developments have created new standards and practices for employers in the U.S., U.K. and Canada to follow. While these aren’t necessarily landmark changes, they do, in most cases, reflect a shift toward protecting workers.
In this article, we’ll break down the extent of these changes and how they impact employers and workplace policies.
Employment Law Changes In The U.S.
It’s an election year, meaning labor and employment laws are bound to be a subject of debate in 2024 with President Joe Biden almost diametrically opposed to his Republican counterparts on many labor issues.
In 2020, Biden ran a fairly pro-labor campaign and has since been as pro-union of a president as the nation has had in decades, expanding the rights of American workers to organize.
In 2021, he signed an executive order to ban or limit non-compete clauses and unnecessary licensing requirements.
In 2023, some new legislation was passed that will go into effect in 2024 and impact employers and employees in a variety of ways.
Workplace Injury and Illness Reporting
Coming into effect in the New Year, the Occupational Safety and Health Administration’s (OSHA) final rule on injury and illness reporting sets a new standard for recordkeeping and reporting for employers based on company size and industry.
The number of companies required to electronically submit their Form 300A injury and illness logs is growing as OSHA intends to conduct strategic outreach and enforcement of OSHA standards in high hazard industries.
The final rule expands on existing electronic recordkeeping obligations by requiring organizations with 100 or more employees from workplaces listed in Appendix B of the rule to submit their 300 Log, corresponding 301 Incident Reports, and 300A Annual Summary Data.
Workplaces listed in Appendix A with 20-249 employees will have to submit their 300A Annual Summary Data. Workplaces with 250 or more employees in any industry will continue to submit their 300A Annual Summary Data.
This reporting requirement does not apply to certain low-risk industries such as office work, retail clothing stores, and legal services. But employers should check with their local counsel or on OHSA’s website to ensure compliance with the regulations.
One of the best ways to ensure compliance is to consistently look at record keeping practices. Certain injuries have time sensitive reporting requirements, depending on severity. Failure to comply can result in fines and further scrutiny from OSHA.Felicia Watson, Senior Counsel at Employment Law firm Littler Mendelson
Joint Employer Rule
Under the National Labor Relations Act (NLRA), joint employment has been redefined and will be enforced by the National Labor Relations Board (NLRB).
Under the rule, two or more entities may be considered joint employers of a group of employees if each entity has an employment relationship with the employees, and if the entities share or codetermine one or more of the employees’ essential terms and conditions of employment.
The essential terms and conditions include:
- Wages, benefits and other forms of compensation
- Working hours and schedules
- Required duties and responsibilities
- Supervision and reporting structure
- Tenure of employment, including hiring and discharge policies
- Rules and guidance related to the method and manner of performance of duties and grounds for discipline
- Working conditions that impact the health and safety of employees.
Which Should Businesses Be Concerned?
Among those heavily impacted will be franchises. According to Michael J. Lotito, co-chair of Littler's Workplace Policy Institute, the joint employer rule "most acutely impacts the franchise business model.
"The last time a rule like this was in existence, the number of claims before the NLRB increased dramatically against franchise relation companies," he said. "The cost to them for attorney fees and the like accelerated. As a result, the franchisor became fearful, for good reason, that providing support of different kinds to the franchises was problematic. So the franchisor was forced to stop providing HR assistance of one kind or another to the small business franchises. Ultimately, small business suffered."
Businesses in contract with other companies as it relates to a staffing agreement or other business arrangements in which one party has rights to assert its policies over the employees of the other party should have experienced labor counsel review the agreement.
"Staffing agencies also are at risk due to the “control” that stems from standard business arrangements where third party companies assist the core client with ancillary business services permitting the core client to focus on its key objectives," Lotito said. "There is nothing wrong or nefarious about these arrangements. They are normal. But under a joint employer lens, the NLRB and other agencies see them as conspiracies to deny employees what they are due as workers and human beings."
To minimize the risk of a joint-employer finding, the agreement should be revised to the benefit of both parties. This may be sufficient to alleviate legal risk.
In other cases it may not be possible for one company to relinquish sufficient control over the other company's employees to avoid a joint-employer finding.
With labor unions being bolstered and a resurgence of employees organizing, it’s vital that HR and people operations teams work with counsel to enact proactive employee relations measures aimed at ensuring employees are satisfied with their working conditions and environment.
Whether employees are part of a union or not, employers could have greater collective bargaining responsibilities than they thought previously and can be held liable for unfair labor practices toward employees they previously didn’t consider to be their employees.
"Agreements and the actual structure of business relationships should be reviewed with qualified counsel to help assess risk tolerance and practical business solutions," Lotito said. "There is no one answer, no one size fits all solution. Every company is different. Given the hyper active regulatory labor environment we find ourselves in, more time and attention to creating and maintaining an issue free environment for workers is a key to a successful enterprise."
Employment Law Changes In Canada
In 2023, Canadian labor policy saw its share of changes including bans on wage fixing (attempts to control wages across an industry) and no poach agreements between employers (companies agreeing to not hire each other’s employee).
Punishment for violating these policies includes significant criminal penalties and the possibility of civil lawsuits.
Some other big changes in Canadian employment policy include:
Ban on replacement workers
Federally related employers will face significant challenges should their workers strike starting in 2024.
A ban on the use of replacement workers during strikes has been put in place, with the exception of instances where doing so would impact public health or workplace safety.
The ban includes managers, employees hired after collective bargaining has begun, independent contractors and those who are employed confidentially. Exceptions can be made for employees in business critical areas who were hired before a notice to begin collective bargaining has been issued.
Violation of the rule is considered an unfair labor practice. Those in violation would incur a penalty of $100,000 for every day that the company was found guilty and face a federal order to stop using replacement workers.
The time for adjusting written policies and preparing the business for the possibility of labor actions is this year, as the rule won’t take effect until early 2025.
Greater termination notice
One law that does take full effect in 2024 gives federally regulated private sector employees greater entitlement to notice and pay in lieu when termination without cause occurs.
Employers must provide notice or pay in lieu equivalent to:
- 2 weeks after 3 consecutive months of continuous employment,
- 3 weeks after 3 consecutive years of continuous employment,
- 1 additional week per consecutive year of continuous employment, up to a maximum of 8 weeks.
The new rule doesn’t impact an employee’s earning of severance pay. Any employee working for a company more than 12 consecutive months remains entitled to severance pay in addition to pay in lieu.
The number of provinces enacting pay transparency laws is steadily increasing in Canada. The requirements of these laws changes from province to province and may include any of the following:
- Mandated reporting of wage rates to government agencies
- Putting compensation ranges into job postings
- Banning the practice of asking job candidates about their compensation history
- Prohibiting any sort of retribution against employees for discussing compensation and benefits packages.
Currently three provinces and the federal jurisdiction have pay transparency laws, and it is expected that another three will follow suit this year.
In 2023, accessibility became a clear focus for employers as several provinces and federal jurisdiction have put new accessibility legislation in place as they develop accessibility standards.
A draft federal standard was published in October, known as the Accessible Canada Act (ACA).
Under this policy, both private and public federally regulated companies will have to create and publish accessibility plans along with mandatory progress reports. They’ll also have to enable feedback processes that will allow for consulting on accessibility compliance.
The standards essentially amount to codes of organizational conduct. These provide a systemic approach to maintaining accessibility across all parts of the employee lifecycle.
In the recruitment process, for example, the following would be required:
- Job candidates cannot be prompted to disclose disabilities unless in response to a job requirement.
- Sign language interpreters, advocates, or other support personnel are permitted during job interviews.
- Employees with disabilities are offered a variety of accommodations, such as assistive technologies.
Once the person is hired, employers must have protections in place which allow employees to safely voice concerns about accessibility without fear of reprisal.
In terms of current guidance and suggested actions to take, much of what has been recommended in the draft standard is broadly worded and leaves a fair amount of ambiguity around what enforcement of the standard would look like.
Employment Law Changes In The U.K.
The U.K will see increased regulation around holiday pay, the minimum wage and family rights. Beginning in April, the national minimum wage will increase for workers, but differently by age. Minimum pay rates are mapped out in the table below.
|Apprentices under 19
Neonatal Care Act
The Neonatal Care (Leave and Pay) Act provides parents with a right to up to 12 weeks leave and pay in the case that their child needs neonatal care in addition to existing parental leave entitlements.
These new rights do take effect until April 2025, but the coming year will provide an important window during which companies will need to get their house in order.
Eligibility for the benefit will extend to the baby’s parents, or anyone expected to have responsibility in raising the child.
A clearer criteria is expected to be released along with a definition of neonatal care, though the general expectation is that the baby require seven days of medical or palliative care in the first 28 days after being born. It’s worth noting that the leave is expected to be taken in the first 68 weeks after the child’s birth.
There’s no minimum service requirement to receive neonatal care leave. However, to receive statutory neonatal care pay, an employees must have worked for the company for 26 weeks and earned on average a minimum of £123 a week.
The Carer’s Leave Act
Coming into effect in April of 2024, employees who are responsible for the long term care of another person will be entitled to leave that can be taken in half or full days, with the ability to take up to a whole week of leave at once.
Employees must give notice within a period of time that is twice the length of time that needs to be taken in advance of the first day of the leave. As long as these requirements are satisfied, employees will have the same protections against redundancy or detriment as other forms of family related leave.
Draft regulations are yet to be passed by Parliament, but guidance is expected well in advance of new rules coming into effect.
Protection from Redundancy Act
As of right now, employees who are on maternity, shared parental or adoption leave are protected in redundancy situations. They have the right to be offered a suitable alternative vacancy should one be available before being made redundant.
The Protection from Redundancy Act extends these protections for employees who have taken maternity, adoption or shared parental leave as well as those who have suffered a miscarriage. The table below shows a break down of when these entitlements can start and when they end.
|Length of entitlement and employment protection
|Employee takes maternity leave
|Start: When employer is notified of pregnancy.
End: When the child is 18 months old
|Start: When employer is notified of pregnancy.
End: Two weeks after the end of the pregnancy for those ending before 24 weeks. Those after 24 weeks are considered stillbirths, meaning the employee is entitled to maternity leave.
|Start: Beginning of adoption.
End: 18 months after the date of placement
|Shared parental leave
|Start: Beginning of leave period.
End: 18 months
The new policies apply to pregnancies in which the employer was notified on or after April 6, 2024 and maternity/adoption leave ending on or after the same date.
Employers planning to restructure in the coming calendar year will need to consider what this means for their restructuring plans. It is reasonable to expect an increase of employees with priority status under the new rules.
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