Last Friday, the National Labor Relations Board (the “Board”) returned to its long-standing independent-contractor standard, reaffirming its adherence to the traditional common-law test. In deciding SuperShuttle DFW, Inc. on January 25, 2019, the Board voted 3-1 along party lines to overturn the 2014 Obama-era ruling in FedEx Home Delivery. In that case, the Board modified the applicable test for determining independent-contractor status by “significantly limit[ing] the importance of [a worker’s] entrepreneurial opportunity.” Specifically, the Board in FedEx created a new factor – “rendering services as part of an independent business” – and made entrepreneurial opportunity merely one aspect of that factor. However, in its Friday decision, the Board found that FedEx impermissibly altered the common-law test, and clarified the essential role entrepreneurial opportunity plays in its determination of independent-contractor status.
In SuperShuttle, the Board analyzed the issue of whether franchisees who operate shared-ride vans for SuperShuttle Dallas-Fort Worth are employees covered under the National Labor Relations Act (NLRA) or independent contractors. Shuttle van drivers for SuperShuttle sought to unionize at Dallas-Forth Worth airport, but the protections of the NLRA do not extend to independent contractors. The Acting Regional Director, in making her decision before the 2014 FedEx case, applied the traditional common-law test and found that SuperShuttle met its burden in establishing that the franchisees are independent contractors and not employees. After overturning FedEx and applying the common-law test, the Board affirmed the Acting Regional Director’s decision.
To start, the Board explained that the inquiry into whether a worker is an employee or an independent contractor has traditionally depended on the common-law agency test, which involves the application of Continue reading
An important decision issued by the Ninth Circuit Court of Appeals last month once again illustrates the one-sided nature of many withdrawal liability disputes and will likely have significant ramifications for many employers withdrawing from underfunded pension plans. The decision holds that the plan correctly applied a credit for a prior partial withdrawal against the employer’s subsequent complete withdrawal before calculating the twenty-year limitation on annual payments provided by ERISA.
By way of background, withdrawal liability is imposed upon an employer when it withdraws from a multiemployer pension fund, and a withdrawal may be either partial or complete. If an employer incurs a partial withdrawal and subsequently incurs either another partial or a complete withdrawal, ERISA directs that the employer be given a credit for the first partial withdrawal. ERISA also limits an employer’s obligation to twenty years of payments.
In GCIU-Employer Retirement Fund v. Quad Graphics, Inc., the employer incurred a partial withdrawal followed by a complete. In calculating the subsequent complete withdrawal liability, the plan applied Continue reading
On Tuesday, January 22nd, at 1 pm EST, join Andrew J. Sommer and Beeta B. Lashkari of Conn Maciel Carey’s national Labor & Employment Practice Group for a complimentary webinar: California Employment Law Update for 2019: New Legal Requirements and Practical Compliance Strategies Every HR Professional and Manager Should Know.“
In the final days of California’s 2018 legislative session, Governor Jerry Brown has signed into law a variety of employment bills, including a flurry of new laws addressing the #MeToo movement and increased efforts to address harassment and discrimination in the workplace. While many of the new laws impose additional requirements on employers, a few clarify the reach of existing employment laws or carve out exceptions to wage and hour requirements. This webinar will review compliance obligations for companies doing business in California, as well as discuss the practical impact of these new laws and recent court decisions and best practices for avoiding potential employment-related claims.
Participants will learn about the following:
Expanded anti-harassment training requirements covering both supervisory and nonsupervisory employees
Limits on confidentiality of settlement agreements involving certain types of claims for sexual assault, harassment and discrimination
Limits on releasing claims of discrimination and harassment as a condition of employment, continued employment or in exchange for a raise or bonus
Expansion of privilege protections to cover communications with prospective employers about sexual harassment
New training requirements for hotels regarding human trafficking
Clarification of the existing prohibition against considering an applicant’s salary history
Clarification of existing lawmaking construction contractors liable for their subcontractors’ wage violations
New exceptions to meal period requirements for certain motor carriers and rest period requirements for certain employees in the petroleum industry
Temporary carve-out from PAGA liability for construction employees covered by collective bargaining agreements
New requirements concerning lactation accommodations
Significant new court decisions concerning the independent contractor relationship, wage and hour requirements and the enforceability of existing California law prohibiting employers from volunteering personnel information to immigration authorities
Current minimum wage requirements both statewide and on local level
The webinar will also address steps employers can take to achieve compliance including evaluating current personnel practices and updating employee handbooks, employment agreements and training protocol.
Click here to register for this webinar.
On November 8, 2018, the Department of Labor (DOL) issued an opinion letter retracting the controversial “80/20 rule” for tipped employees. Under this rule, if a tipped employee spent more than 20% of his or her working time performing “non-tipped” duties, his or her employer could not take a tip credit for time spent performing those non-tipped duties. The rule caused years of confusion, especially among employers. After all, what duties exactly qualified as “non-tipped”? Would folding napkins in between waiting tables count? And were employers expected to track every second of an employee’s day to determine if those non-tipped duties exceeded 20% of the total workday?
Under the DOL’s latest opinion letter on this issue, it has made clear that the it “do[es] not intend to place a limitation on the amount of duties related to a tip-producing occupation that may be performed, so long as they are performed contemporaneously with direct customer-service duties and all other requirements of the [Fair Labor Standards] Act are met.” Accordingly, employers should be able to breathe at least a sigh of relief. So how did we get here, and what should employers be able to expect in the new year?
By way of background, under the Fair Labor Standards Act (FLSA), “tipped employees” are defined as Continue reading
In 1997, the U.S. Supreme Court decided the case of Auer v. Robbins, establishing the standard for what has become known as Auer deference (or Seminole Rock Deference from Bowles v. Seminole Rock and Sand Co. (1945)). This decision and the standard it set is significant for employers because it gives substantial latitude to federal agencies, like the Department of Labor, to interpret their own ambiguous standards. Specifically, in Auer, the Supreme Court held that an Agency’s, in this case the Department of Labor, interpretation of its own standards is “controlling unless ‘plainly erroneous or inconsistent with the regulation.’” In other words, if it’s not clear what is required by the plain language of the standard, the Court will generally defer to the Agency’s own reasonable interpretations of its regulations.
However, the Supreme Court will now have the opportunity to reconsider Auer deference in the case of Kisor v. Wilkie. On December 10, 2018, the Court agreed to review Question 1 of the petition for certiorari, which specifically asks “[w]hether the Court should overrule Auer and Seminole Rock.” Continue reading