Rather than wait for another case to come before it to address the requirements for joint employer status, the majority of the National Labor Relations Board (NLRB) members have opted to take the little-used rulemaking route. The proposed rule, which was released on September 14, 2018, would amend 29 CFR part 103 to add §103.40, defining joint employers. The proposed definition is only two sentences long:

An employer, as defined by Section 2(2) of the National Labor Relations Act (the Act), may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction. A putative joint employer must possess and actually exercise substantial direct and immediate control over the employees’ essential terms and conditions of employment in a manner that is not limited and routine.

Continue Reading NLRB Tries Again on Joint Employer Question

The Office of Federal Contract Compliance Programs (OFCCP) released three new directives late last week, which provide insight into its approach with respect to two key facets of contractor compliance under new Acting Director Craig Leen: compensation analysis and affirmative action programs (AAPs). “Directives” do not create or change laws, but provide guidance on the agency’s enforcement and compliance policies.

Federal contractors or subcontractors subject to affirmative action requirements under Executive Order 11246, Section 503 of the Rehabilitation Act, or the Vietnam Era Veterans’ Readjustment Assistance Act should pay attention to these developments. Continue Reading OFCCP Issues New Directives to Boost Contractor Compliance

Earlier this month, the General Counsel of the National Labor Relations Board issued a memo instructing regional agency officials on how to assess workplace rules in light of the new standard established by the National Labor Relations Board (NLRB) in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017). Together, the Boeing decision and the General Counsel’s memo shift the presumption regarding facially neutral workplace rules back in favor of the employer.

Continue Reading NLRB General Counsel Issues New Guidance for Workplace Rules

It was a good start to the week for employers. That is because on Monday the U.S. Supreme Court issued its long-awaited decision in Lewis v. Epic Systems, and two other related cases, and held that class action waivers in employment agreements with arbitration clauses must be enforced as written. In reaching this conclusion the Court flatly rejected the National Labor Relations Board’s position that class action waivers are invalid because they violate an employee’s right to engage in protected concerted activity under Section 7 of the National Labor Relations Act (NLRA).

After six years of uncertainty, those employers with appropriate class action waivers in their employment agreements can breathe a collective sigh of relief. For all other employers, it may be time to reconsider whether an employment agreement that includes a class action waiver can reduce your liability exposure. Continue Reading Supreme Court OKs Class Action Waivers in Employment Arbitration Agreements

The California Supreme Court adopted a new test Monday for determining whether workers are employees—rejecting the court’s previous multi-factor test. The decision in Dynamex Operations West Inc. v. The Superior Court of Los Angeles County, S222732 (Cal. Apr. 30, 2018), has immediate ramifications for employers in California who hire or utilize independent contractors. In short, the bar for establishing “independent contractor” status has been raised, and California companies will have to assess their practices in order to conform to this new reality. Continue Reading California Supreme Court Raises Bar on Independent Contractor Status

As we had previously reported, in 2015 the then-Democrat controlled National Labor Relations Board (NLRB) in the Browning-Ferris case ruled that a joint employer relationship could be found if an entity had mere indirect or potential control over individuals employed by another entity. This decision reversed decades of precedent in which the NLRB held that a joint employer relationship would only be found if one entity had “direct and immediate control” over individuals employed by another entity. Continue Reading Ping-Pong Anyone? NLRB Vacates <em>Hy-Brand</em> and Reinstates – For the Moment – <em>Browning-Ferris</em>

In a recent speech, the head of the Antitrust Division of the U.S. Department of Justice (DOJ) once again warned companies about the antitrust risks of certain agreements among employers not to hire each other’s employees. The Federal Trade Commission and DOJ Antitrust Division have challenged these agreements for years. To avoid the new criminal risks that can come with some of these so-called “no-poach” agreements, companies should review any agreements with others regarding hiring practices and ensure their antitrust training is properly designed and targeted. Continue Reading DOJ Antitrust Division Again Emphasizes Risks of “No-Poach” Agreements

Board Member Philip Miscimarra’s term on the National Labor Relations Board (NLRB) expired last week with a bang rather than a whimper. In the final days of his tenure, the Board reversed four controversial Obama-era decisions addressing joint employers, workplace policies, micro-units, and the duty to bargain. These decisions, summarized below, will impact all employers, not just those with unionized workforces. Although the Board now returns to a 2-2 Republican to Democrat split as a result of Miscimarra’s departure, once his Republican replacement is confirmed employers should expect to see more decisions on the chopping block. Continue Reading NLRB Reverses Four Obama-Era Decisions

As we previously blogged here, beginning on October 31, New York City businesses will no longer be allowed to ask about an applicant’s salary history during the hiring process.

Just in time for the law to go into effect, the NYC Commission on Human Rights has published a set of FAQs to help employers and the public navigate through the hiring process under this new law. Below are some key takeaways from the FAQs. According to the Commission’s guidance, this is how the law is expected to be applied.

Continue Reading Don’t Be Scared: Guidance Issued Ahead of Halloween Implementation of NYC Salary History Law

Technological advances are leading many businesses to collect and store the biometric data of their employees, contractors, and customers for purposes of identification and authentication. Biometric data has many uses, such as giving people access to their accounts and sensitive financial information, providing employees, contractors, and customers physical access to workplaces and businesses, and giving employees the ability to clock in and out of work without using keyfobs or ID cards. Continue Reading Illinois Businesses Beware: Class Action Suits on the Rise for Alleged Violations of the Illinois Biometric Information Privacy Act