As reported here and here, California recently enacted new legislation – Assembly Bill 5 – that expanded the scope of an “employee” under state law.  Beginning January 1, 2020, the answer to whether a person providing services in California is an independent contractor (as opposed to an employee) under the California Labor Code, the Industrial Welfare Commission (“IWC”) Wage Orders, and the California Unemployment Insurance Code, will generally depend on whether they satisfy all three prongs of the so-called ABC Test:

  1. The worker must be free from the control and direction of the hirer in connection with the performance of the work.
  2. The worker must perform work outside the “usual course” of the hirer’s business.
  3. The worker must be customarily engaged in an independent established trade, occupation, or business of the same nature as the work performed.

There are a myriad of occupational and industry exemptions to the application of the ABC Test, many of which are highlighted here.

Having tightened independent contractor classification standards, the next big target for the state legislature may be joint employer liability.


Continue Reading Back to the Joint Employer: Having Changed the Classification Test for Independent Contractors, Will the California Legislature Target the Joint Employer Test Next?

In an effort to curb workplace violence against healthcare workers, The Joint Commission, a national healthcare accreditation body, recently issued seven actions healthcare organizations are encouraged to implement.
Continue Reading Healthcare Organizations Take Notice: The Joint Commission Issues Recommendations to Stem Workplace Violence

It is a rare occasion that the phrase “joint employer” has positive implications for any business. However, a panel sitting on the California Court of Appeals recently gave one party in a joint employer arrangement cause to celebrate when it held in Castillo v. Glenair, Inc., 22 Cal. App. 5th 348 (2018) [1], that the settlement of an earlier wage and hour class action filed against the party’s retained staffing company barred the instant suit alleging the same claims on behalf of the same class.
Continue Reading Court Rejects Plaintiffs’ Attempt to Double-Dip in Settlement Pool

Yesterday evening, the U.S. House of Representatives passed the “Save Local Business Act” (H.R. 3441 – Bryne), legislation that would amend the National Labor Relations Act and the
Continue Reading House Approves Save Local Business Act – Bill To Overturn Controversial Joint Employer Ruling

Yesterday, the U.S. House Committee on Education and the Workforce approved the “Save Local Business Act” (H.R. 3441 – Bryne), legislation that would amend the National Labor Relations Act and
Continue Reading Committee Approves Save Local Business Act – Redefining Joint Employer Liability

The House Education and the Workforce Committee held a joint subcommittee hearing last week to analyze the “Save Local Business Act” (H.R. 3441 – Byrne), a measure that would amend the National Labor Relations Act and the Fair Labor Standards Act to limit joint employer liability. If passed, the Act would reverse the current “Browning-Ferris” rule, which sets forth a broad definition of “joint employer,” imposing liability and requiring bargaining in situations where a business possesses only potential and indirect control over the employees in question.
Continue Reading Save Local Business Act Introduced in the House

The U.S. Department of Labor (“DOL”) announced today that it was rolling back an Obama-era policy that attempted to increase regulatory oversight of joint employer and contractor businesses.

Courts and agencies use the joint employer doctrine to determine whether a business effectively controls the workplace policies of another company, such as a subsidiary or sub-contractor. That control could be over things like wages, the hiring process, or scheduling.
Continue Reading The U.S. Department of Labor Rolls Back Obama-Era Guidance on Joint Employers and Independent Contractors

On July 11, 2016, the National Labor Relations Board (the “NLRB” or “the Board”) upended more than a decade of precedent and held that a single bargaining unit may be comprised of an employer’s direct hires and the temporary workers provided by a “joint employer” without prior consent from either employer.  In the case, Miller & Anderson, Inc. (364 NLRB 39), the Board expressly rejected standing precedent and prescribed the return to a standard that makes it easier for unions to organize employees working for joint employers into a single bargaining unit.  The Miller & Anderson decision reflects the NLRB’s increased commitment to expand the joint employer doctrine.  Employers who provide or use temporary workers and/or are in engaged in joint employer relationships should take note.
Continue Reading NLRB Finds Increased Use of Joint Employees Justifies Removal of Barriers to Organization