As the definition of a joint employer shifts with each change in Administration, so too does the holding of Browning-Ferris – a case that has been fluctuating between the National Labor Relations Board (“NLRB”) and the United States Court of Appeals for the District of Columbia (“D.C. Circuit Court”) for nearly ten years.
In 2013, the Sanitary Truck Drivers and Helpers Local 350, International Brotherhood of Teamsters (the “Union”) kicked off this almost decade-long controversy by petitioning the NLRB for representation of workers that it asserted were joint employees of Leadpoint Business Services and Browning-Ferris Industries of California, Inc. (“BFI”). Since then, the NLRB and the DC Circuit Court have issued numerous and, more often than not, contradictory rulings, culminating with this most recent decision from the D.C. Circuit Court. Here, the Court challenged the Trump Administration’s NLRB’s reasoning that BFI was not a joint employer using what the NLRB termed “a clear rule of law requiring proof of direct and immediate control” that had been in place “for at least 30 years.” Essentially, the D.C. Circuit Court vacated the NLRB’s ruling because “the [NLRB] made multiple overlapping errors” in its analysis, which the Court asserted failed to support the NLRB’s ultimate decision.
Timeline of the Case
To better understand the D.C. Circuit Court’s most recent decision, below is a timeline of the prior decisions and related action from the NLRB related to the joint employer standard: Continue reading →
The Department of Labor (“DOL”) has taken a number of actions during the Biden Administration to express and demonstrate that it is prioritizing protections against investigations of retaliation in the workplace. For example, in November 2021, the DOL, National Labor Relations Board (“NLRB”), and Equal Employment Opportunity Commission (“EEOC”) announced a joint initiative to raise awareness about retaliation issues among workers and employers. As part of the initiative, the Agencies made clear that they would be working cooperatively and, per the current Solicitor of Labor, “use all tools available to protect workers from retaliation.” More recently, in March 2022, the Wage and Hour Division (“WHD”) issued a Field Assistance Bulletin (“FAB”) specifically outlining the anti-retaliation provisions it is charged with enforcing and the elements of retaliation, as well as providing examples of what it would consider retaliation under the various laws and programs.
This FAB is significant not because it kicks off any new or additional enforcement effort by the WHD, but because it Continue reading →
We thought it would be a good break from all the COVID-19-related coverage to delve into a retaliation case under the Fair Labor Standards Act (“FLSA”) through the lens of an interesting recent complaint filed by the Department of Labor (“DOL”) involving…a huge pile of pennies. A review of the case addresses both the types of actions that would be considered retaliatory under the law, as well as the significance of proximity when analyzing the viability of a case of retaliation. The facts as alleged by the DOL also act as a warning against the role internet postings can play in supporting a legal action.
Facts as Asserted in the Complaint
Though somewhat extraordinary, the facts in the case seem fairly straightforward. Per the DOL’s Complaint, Continue reading →
On November 5, 2021, OSHA published its latest Emergency Temporary Standard (“Test-or-Vaccinate ETS”) to address the effects of COVID-19 in the workplace – “COVID-19 Vaccination, Testing, and Face Coverings.” Under the Test-or-Vaccinate ETS, employers with 100 or more employees must implement a program to facilitate (1) a COVID-19 vaccination requirement for all employees or (2) a combination of a COVID-19 vaccination requirement and weekly testing for those employees who choose not to get vaccinated. Per OSHA’s stated intent to strongly encourage vaccination through the Test-or-Vaccinate ETS, the rule specifically requires employers to provide paid time off for vaccination AND to recover from vaccine-related side effects. In the Preamble to the Test-or-Vaccinate ETS, OSHA asserts that these requirements ensure unvaccinated employees can be vaccinated without having to sacrifice pay or their jobs.
Below we review the two different types of leave, including their individual nuances, that are required by the Test-or-Vaccinate ETS.
Paid Leave for Vaccination
Under 29 C.F.R. 1910.501(f)(1), employers must provide reasonable time – up to 4 hours per dose – to each employee to receive their primary vaccine dose or doses during work hours. This includes time spent:
Making the appointment and completing related paperwork;
Waiting to get and actually getting vaccinated, as well as post-vaccination monitoring; and
Traveling to and from the vaccination site as necessary.
OSHA guidance does clarify that an employer is not required to reimburse an employee for transportation costs incurred to receive the vaccine, just for the actual time to receive each vaccine dose. Even where an employer facilitates a vaccination event on site, it must provide reasonable paid time to employees to receive each primary vaccination dose, though the time may be more limited as it takes out travel and making the appointment. Notably, if an employee chooses to receive a primary vaccination dose outside of work hours, the employer would not be required to grant paid time to that employee for that dose. However, because of the paid leave scheme, it does seem less likely that an employee would make the choice to go outside of their work hours.
Time must be paid at the employee’s regular rate of pay and only applies to the primary vaccination doses; i.e., time required to receive a booster shot is not required to be paid under the Test-or-Vaccinate ETS.
Importantly, this paid time cannot be offset by other forms of leave, such as sick leave or vacation leave. As a justification for prohibiting the use of other paid leave for this purpose, OSHA explains that it created this new bucket of required paid time because it believes employees could be discouraged from getting vaccinated if they have to dip into their accrued sick leave or general PTO to get vaccinated. Continue reading →
On Monday, June 21st, the Department of Labor (“DOL”) issued a Notice of Proposed Rulemaking (“NPRM”) that would alter regulations interpreting who is considered a “tipped employee” under the Fair Labor Standards Act (“FLSA”) yet again. Specifically, the NPRM proposes (1) to withdraw the dual jobs portion of the Final Rule promulgated in December 2020; and (2) a new regulatory framework by which to determine whether an employee is performing work that meets the definition of a tipped occupation and allows the employer to take a tip credit under the FLSA. Specifically, the FLSA allows an employer to pay a tipped employee less than the minimum wage – specifically $2.13 per hour under Federal law – only when the worker is engaged in a tipped occupation because the tips the employee receives should make up for the rest of minimum wage hourly rate. The NPRM creates a revised standard by which an employer would determine who is a “tipped employee” and for what portion of that employee’s work hours the employer can take a tip credit and pay the employee at the lower rate. The standard the DOL proposes to adopt generally reflects the interpretive guidance it maintained for decades before a new standard was established during the Trump Administration – the “80/20 Rule” – along with some other changes that the DOL asserts better define tipped work.
Background of the Dual Jobs Standard for Tipped Employees
Under the FLSA, “tipped employees” are defined as those employees who customarily and regularly receive more than $30 a month in tips. As stated, employers can pay tipped employees a reduced cash wage and claim a “tip credit” to make up the difference between the reduced cash wage and hourly minimum wage. When the DOL first published its regulations on application of the tip credit, it directly addressed the scenario where an employee has “dual jobs” under 29 C.F.R. 531.56(e) – two jobs for the same employer. In that situation, employers can take the tip credit only for the tipped job (i.e., the one routinely satisfying the $30-a-month provision). Later, the DOL revised its Field Operations Handbook (FOH), vastly broadening the scope of its “dual jobs” distinction by applying it to dual tasks. It stated that when “tipped employees spend a substantial amount of time (in excess of 20%) performing preparation work or maintenance, no tip credit may be taken for the time spent in such duties.” This is what’s known as the “80/20 rule.”
As the number of vaccinated individuals continues to increase and we are seeing a significant decrease in COVID-19 cases, the landscape of legal requirements applicable to employers and employees is changing, particularly related to employees who are fully vaccinated. Indeed, in an unexpected update to its guidance last week, the CDC stated that fully vaccinated individuals may resume essentially all indoor and outdoor pre-pandemic activities in almost all circumstances. Although federal agencies such as OSHA and the EEOC have not yet updated their relevant guidance on treatment of vaccinated workers to reflect these changes, they both have stated their intent to address, and in OSHA’s case follow, the CDC guidance, and many states are doing the same.
Accordingly, employers now, more than ever, must understand and may want to take certain actions based on the vaccination status of their workers. However, obtaining information on an employee’s status and using that information to dictate policies and practices in the work environment has legal implications and raises many important questions that could pose difficulties for employers who want to ensure that they proceed in compliance with applicable laws. Below, we provide answers to questions we have received related to employee vaccination status as well as tips to effectively deal with these novel and complex issues.
Question 1: Can employers ask employees about their COVID-19 vaccination status?
Yes, but employers should be mindful of compliance with federal and state laws on disability, privacy and discrimination. If the employer requests confirmation and/or proof that an employee has been fully vaccinated, this should be a simple, straightforward inquiry to determine an employee’s current vaccination status. Such a simple, general inquiry is legitimate and would be considered permissible under applicable employment laws, particularly if it is made to determine whether:
COVID-19 has shifted the National Labor Relations Board’s (“NLRB”) longstanding policy that representation elections should generally be conducted manually. In a recent example of COVID-19’s impact on representation elections, the Acting Regional Director for Region 10 issued a Decision and Direction of Election on January 15, 2020 requiring an election petitioned for by the Retail, Wholesale and Department Store Union (“the Union”) occur by mail-ballot because of the “undeniable presence of COVID-19 both inside and outside the Employer’s facility.” The employer, Amazon.com Services LLC, requested a manual election – still the applicable presumption – while the Union requested an election by mail ballot. In deciding that the election should take place by mail, the Regional Director cited guidance issued by the Centers for Disease Control related to general elections and guidance issued from the Office of the General Counsel as to what protocols should be used for a manual election during the pandemic. But the most significant guidance the Regional Director relied on in mandating a mail-ballot election was the framework developed by the NLRB in the Aspirus Keweenaw case.
Framework Established by NLRB in Aspirus Keweenaw
In Aspirus Keweenaw, the NLRB reviewed a decision from the Regional Director for Region 18 that a mail-ballot election should occur at a hospital in Michigan over a manual ballot election because of “the extraordinary circumstances presented by the COVID-19 pandemic.” The NLRB began its analysis by acknowledging that there is a presumption in favor of manual elections, particularly as statistics show that participation is generally higher for manual elections. However, the NLRB recognized that its approach to elections must evolve based on the unique circumstances created by the COVID-19 pandemic and the need for more defined parameters as to when a mail-ballot election is appropriate based on changing pandemic conditions and in consideration of its preference for manual elections. Specifically, the NLRB laid out six situations that will normally suggest a mail-ballot election:
The Agency officer tasked with conducting the election is operating under “mandatory telework” status;
Either the 14-day trend in the number of new confirmed cases of COVID-19 in the county where the facility is located is increasing or the 14-day testing positivity rate in the county where the facility is located is 5% or higher;
The proposed manual election site cannot be established in a way that avoids violating mandatory state or local health orders relating to maximum gathering size;
The employer fails or refuses to commit to abide by the GC Memo 20-10 protocols;
There is a current COVID-19 outbreak at the facility or the employer refuses to disclose and certify its current status; or
As of July 1, 2020, eligible employees in the District of Columbia (“DC”) will be entitled to paid leave up to a designated period depending on the qualifying leave event. Covered employers should have begun making paid family leave contributions beginning July 1, 2019. Specifically, covered employers must contribute a quarterly payroll tax of 0.62% of covered employees’ total gross wages from the immediate past quarter. In addition to paying the required quarterly payroll tax, there are several other aspects of the law of which employers should be aware. Here, we review and highlight important aspects of DC’s Paid Family Leave law, including the February 1st posting/notice deadline. For additional discussion on the DC Paid Family Leave law and frequently asked questions, please also see our prior post.
Covered Events and Applicable Leave Periods
As you may know, the DC Paid Family Leave law provides leave benefits to eligible employees for three types of leave: (1) parental leave; (2) family leave; and (3) medical leave. “Parental leave” includes events associated with the birth of a child, placement of a child with the employee for adoption or foster care, and placement of a child with an employee who legally assumes and fulfills parental responsibility for the child. “Family leave” is leave taken to care for a family member with a diagnosis or occurrence of a serious health condition. And “medical leave” is leave taken to attend to one’s own diagnosis or occurrence of a serious health condition. Continue reading →
In October 2018, the District of Columbia (“D.C.”) Council passed a law called the “Tipped Wage Workers Fairness Amendment Act of 2018” (the “Act”), which had the immediate impact of repealing legislation (“Ballot Initiative 77”) that eliminated the use of a tip credit in D.C. Because the D.C. Council repealed Ballot Initiative 77 through passage of the Act, employers with tipped employees are still permitted to take a tip credit toward meeting minimum hourly wage requirements. However, the Act also imposes certain training, reporting, and notice requirements for all employers of tipped employees. Some of these requirements have already gone into effect, while others require budgetary approval before they will kick in. We review some of the more significant requirements below.
Under the Act, all employers of tipped employees will have to provide sexual harassment prevention training to employees, as well as managers, owners, and operators of the business. Specifically, the D.C. Office of Human Rights (“OHR”) will make available a sexual harassment training course, or will certify a list of providers to give the training, that covers how to respond to and prevent sexual harassment by co-workers, management, or patrons/guests. The Act mandates that employers provide the training to new hires within 90 days of hire unless they received the training within the last two years. All other workers already employed must receive training within two years. Managers, owners, and operators must then receive training every 2 years and all training should be given in-person or online. If the training is given by a certified provider, the employer must submit a certification to the OHR that the training has been completed. Certification is required within 30 business days after completion. Continue reading →
As we reported back in March, Judge Chutkan of the U.S. District Court for the District of Columbia lifted the stay on the Equal Employment Opportunity Commission’s (“EEOC’s”) 2016 final rule mandating that employers who are required to submit an annual Employer Information Report (“EEO-1”) also submit pay data by sex, ethnicity, and race. This additional piece of the EEO-1 Report has come to be known as “Component 2.” After the Judge lifted the stay, the EEOC responded that it would not be in a position to accept the EEO-1 Component 2 by May 31, 2019 – the deadline to submit the standard data set collected through the EEO-1 Report (“Component 1”) – and adjusted the deadline to submit Component 2 data to September 30, 2019. Judge Chutkan reluctantly accepted this timeline and mandated that two years of data be collected by this date. Accordingly, the EEOC provided notice that it would be requiring employers to submit pay data for calendar years 2017 and 2018 by or before September 30, 2019.
Despite the fact that collecting this data could be very burdensome for employers, the EEOC’s deadline provided only a matter of months in which to gather and submit it. Now, with just over a month to spare, covered employers must ensure they understand what data needs to be submitted, how to tabulate the data for submission, and how to ultimately submit the data to the EEOC. Continue reading →