NLRB and DOT Consider New Regulations Affecting California Employers

In a spate of recent activity, the federal National Labor Relations Board and U.S. Department of Transportation have issued proposed regulations that would affect employers in the transportation and other industries affecting interstate commerce.  The proposed regulations are:

● A Notice of Rulemaking issued by the NLRB which would require employers to post 11 x 17 posters in their workplaces, or in either email or web postings if they normally communicate in that manner, advising their employees of their right to join, form, and assist unions under the National Labor Relations Act. The poster, which would mirror the one required by the Dept. of Labor for federal contractors, would specifically inform employees of their rights to organize, bargain collectively, and engage in other union-related activities without retaliation for discrimination by their employer. The proposed rule would also provide that failure to post the notice is an unfair labor practice and could be used as evidence of an unlawful motive, and that the statute of limitations for bringing unfair labor practice charges would continue to run if the notice is not posted.The rule was published in the Federal Register on December 21, 2010, and may be adopted following the expiration of the sixty-day comment period which began to run on that date.  The proposed poster can be found in the Appendix to Subpart A of the Notice of Proposed Rulemaking.

● On December 29, 2010, the D.O.T.’s Federal Motor Carrier Safety Administration (FMCSA) issued proposed regulations revising the hours of service for drivers of property-carrying commercial vehicles.  The proposed rule would maintain the required off-duty period for drivers of at least 10 hours, but would reduce the period of time during which a driver can then be “on duty” from 14 hours to 13 — with “on-duty” time consisting of such activities as waiting for cargo, unloading, and taking meal and rest breaks, as well as driving.  In exigent circumstances, drivers would also be able to extend their “on-duty” windows to 16 hours twice a week, so long as they took three-hour breaks.  The weekly limits in the current rule, of 60 hours in 7 days or 70 hours in 8 days, would remain unchanged.  However, the 34-hour “break” which permits drivers to restart the workweek clock would be changed to require at least two 6-hour break periods between midnight and 6 a.m. The American Trucking Association is lobbying heavily against the proposed rule changes, which have also been put out for comment for 60 days. The text of this proposed rule can be accessed by clicking here.

AALRR is monitoring the both of these proposed rules and will provide updated alerts on any final rules that are adopted by these agencies.

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