The National Labor Relations Board: Looking Ahead to 2024 If you found it difficult to keep up with all of the new directives coming from the National Labor Relations Board (the Board) in 2023, buckle up—it looks like more of the same as we head toward 2024.
Farm Labor Survey Previews Likely H-2A Wage Increases for 2024 The U.S. Department of Labor has recently published its notice announcing the updated Adverse Effect Wage Rates (AEWRs) that will be effective from January 1, 2024. The AEWR is the minimum hourly wage rate that the DOL has determined must be offered and paid by employers to H-2A workers and workers in corresponding employment to prevent adverse effects on the wages and working conditions of similarly employed U.S. workers. Examples of 2024 AEWRs include: • California: $19.75 per hour • Arizona and New Mexico: $16.32 per hour • Colorado and Nevada: $16.63 per hour The rates track the USDA’s annual Farm Labor Survey and are applicable for field and livestock worker occupations (SOC codes: 45-2041, 45-2091, 45-2092, 45-2093, 53-7064, 45-2099), which represent the majority of agricultural jobs under the H-2A program. For occupations not represented by the current Farm Labor Survey (FLS) data, the AEWRs are set using the Bureau of Labor Statistics (BLS) Occupational Employment and Wage Statistics (OEWS) program. — Jason Resnick
Priorities for the Board and General Counsel Jennifer Abruzzo will continue to focus on narrowing existing work rules and expanding union protections. A few key areas will likely include: A continuing focus on ‘reasonable interpretation’ standards for reviewing workplace rules. The Board’s new focus for analyzing employer policies is “from the perspective of an employee who is subject to the employer’s rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity. The overall view of the Board being that employees who are economically dependent on their employers are anxious to avoid discharge or discipline, reasonably inclined to construe ambiguous work rules to prohibit protected activities and as a result seek to avoid any risk of violation by forgoing such activities. Such a subjective examination perspective will likely result in a tendency of the Board to find interference—even if a noncoercive interpretation is also reasonable. As a result, ‘justification’ will become the watchword in 2024 when it comes to evaluating new and existing employment policies. Limitations on restrictive agreements (e.g., non-compete agreements). This focus will be of less concern to California employers as the state has made clear—if it wasn’t before!—that such agreements, in any form, are a serious violation of its public policies against restricting an employee’s ability to freely move from opportunity to opportunity. Nonetheless, for 2024, the Board’s focus will be on equalizing the balance between employers and employees when it comes to negotiating these types of agreements. Responding to Union Recognition Demands. The Board’s new framework for recognizing an employer’s duty to collectively bargain marks a significant shift in the landscape of labor relations in the United States. With the weight of the Biden Administration behind its
Union-focused efforts, the Board will likely continue its stated goals of shortening pre-election hearings, limiting pre-dispute hearings and pushing forward quickened election dates. Looking ahead to 2024 with these key focuses in mind, employers should consider the following: Increase internal review of policies and procedures (e.g., from once a year to every six months or a quarterly schedule). Consult with legal counsel before updating or initiating new policies to ensure a broad focus in keeping with the Board’s new review standard. For employers outside of California, reconsider the value and risk propositions of continuing to use non-compete agreements. Examine the organization’s goals in utilizing such agreements and consult legal counsel to discuss alternative means for achieving those goals. Pro-union changes are, for the foreseeable future, here to stay. Staying up to date on employer duties when it comes to collective bargaining will go a long way to lower an organization’s risk of running afoul of complex rules governing employer/employee interactions. A huge focus for employers in 2024 should also be identifying and taking steps to improve workplace relations. — Teresa McQueen
Update on Interview Waiver for Nonimmigrant Visa Applicants
The U.S. Department of State has announced new categories of nonimmigrant visa applicants who can waive the in-person interview requirement. Starting from January 1, 2024, first time H-2 visa applicants and other nonimmigrant visa applicants who have previously received a nonimmigrant visa in any classification (except B visa) can apply for an interview waiver if they meet certain legal and eligibility criteria. Applicants renewing a nonimmigrant visa in the same classification within 48 months of the prior visa’s expiration date are also eligible for interview waiver until further notice. This new authority is a significant development and will be reviewed annually. It remains in effect until further notice. This update aims to streamline the visa application process for certain categories, benefiting both applicants and H-2A employers. —Jason Resnick
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