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Hoping to clarify when entities should be treated as “joint employers” under the FLSA, the Department of Labor (“DOL”) recently announced its intent to revise its so-called “joint employer” regulations under the Fair Labor Standards Act (“FLSA”). Under the FLSA, covered employers must pay nonexempt employees at least the federal minimum wage for all hours worked and overtime wages for all hours worked in excess of 40 hours in a workweek. Since 1939, the DOL has recognized that two or more entities may sometimes “jointly” employ a single employee and share legal responsibility for that employee’s wages for hours worked for either entity. However, the DOL has not formally addressed the conditions under which “joint employment” relationships exist since 1958.
Continue Reading Aiming for Clarity, DOL Proposes to Update the FLSA’s “Joint Employer” Regulations

While arbitration as a form of alternative dispute resolution (“ADR”) has long had a presence in American jurisprudence, a recent Supreme Court decision —coupled with significant cultural trends —have left many employers and legislators wondering about the continued viability of mandatory pre-dispute arbitration for all employment disputes.

Is the FAIR Act Fundamentally Unfair to Employers?

On February 28, 2019, U.S. Representative Hank Johnson (D-GA) and U.S. Senator Richard Blumenthal (D-CT) introduced “The Forced Arbitration Injustice Repeal Act” (“FAIR Act”) which seeks to (1) prohibit pre-dispute arbitration agreements that force arbitration of future employment, consumer, antitrust, or civil rights disputes, and (2) prohibit agreements and practices that interfere with the rights of individuals, workers, and small businesses to participate in a joint, class, or collective action related to an employment, consumer, antitrust, or civil rights dispute.

The Senate bill is S. 610. It has 33 co-sponsors, all Democrats. It has been referred to the Senate Judiciary Committee, where it is unlikely to receive consideration. The House bill (H.R. 1423), on the other hand, has been referred to the House Judiciary Committee where it is likely to receive active consideration. It has 160 co-sponsors.
Continue Reading New Federal Legislation Seeks to Eliminate Mandatory Arbitration Agreements

Directly in line with the U.S. Department of Labor’s Office of Federal Contract Compliance Program’s (OFCCP) new policy emphasis on agency transparency, accountability, efficiency and collaborative resolution, the OFCCP released three new helpful directives on November 30, 2018 concerning the agency’s investigative procedures and avenues for increased communication with federal contractors. The three directives, titled DIR 2019-01 (regarding “Compliance Review Procedures”), DIR 2019-02 (regarding “Early Resolution Procedures”), and DIR 2019-03 (regarding “Opinion Letters and Help Desk”) were issued to “provide guidance to OFCCP staff or federal contractors on enforcement and compliance policy [and] procedures.” While each directive serves its own unique regulatory function, together these directives represent OFCCP’s commitment to consistency in enforcement and cooperation with the federal contractor community. As a whole, they should be viewed as beneficial to contractors aiming to comply with the law, but minimize the “gotcha” approach recently favored by the agency.
Continue Reading OFCCP Issues Contractor Friendly Directives That Aim to Streamline Investigative Processes and Decrease Contractor Guesswork

Washington D.C. may become the next local government to require that restaurants pay minimum wage to its servers, bartenders, and any other workers who currently earn a “tipped wage” – a lower base wage, plus tips. Presently, that base wage is $3.33 per hour.
Continue Reading D.C. Voters Will Decide Whether to Eliminate Tipped Restaurant Wages

Yesterday, the National Labor Relations Board (“Board”) overruled Browning-Ferris Industries, 362 NLRB No. 186 (2015) (“BFI”) and returned to the pre-BFI standard that governed joint employer liability. Hy-Brand Industrial Contractors Ltd., 365 No. 156 (December 14, 2017) (“Hy-Brand”).

The BFI decision set 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. BFI received widespread criticism from both unionized and union-free businesses, as the BFI test was unpredictable and fundamentally altered the law applicable to a number of business relationships including: user-supplier, contractor-subcontractor, franchisor-franchisee, parent-subsidiary, predecessor-successor, lessor-lessee, and creditor-debtor. Efforts to overturn BFI have been ongoing since 2015, including the Save Local Business Act which was advanced to the Senate in November 2017.
Continue Reading NLRB Overrules Browning-Ferris Joint Employer Standard

The NLRB announced yesterday, a Request for Information (“RFI”) on the Board’s 2014 “Quickie Election” representation regulations (at 29 CFR parts 101 and 102). The RFI seeks input on the amendments to representation case procedures, which drastically changed the process for NLRB conducted elections in which employees vote on whether they want to be represented by a union. The RFI was approved by Board Chairman Philip A. Miscimarra and Board Members Marvin E. Kaplan and William J. Emanuel. Board Members Mark Gaston Pearce and Lauren McFerran dissented.
Continue Reading New Labor Board May Kill “Quickie Election” Rule; Requests Public RFI

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

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

Overview

Retailers and other employers regularly consider the backgrounds of job applicants and employees when making personnel decisions. It is not illegal for employers to ask questions about an applicant’s criminal history, or to require a background check. However, whenever an employer requests background information about a job applicant or employee, the employer must comply with federal and state laws. Within the last five years, employers have been put under increased scrutiny, especially when they require criminal background checks during the hiring process. This article summarizes recent legal trends regarding criminal background checks in the employment context, and discusses how employers—particularly those within the retail industry—can ensure compliance with the law.
Continue Reading “Ban the Box” and Background Checks – Recent Trends and Movements

In November 2014, San Francisco passed the first predictive scheduling legislation in the country. Since that time, other states and municipalities have followed San Francisco’s lead, and have either proposed or enacted some variation of a predictive scheduling law.

On March 3, 2017, New York became the most recent major city to introduce predictive scheduling legislation. The New York City Council’s Committee on Civil Service and Labor introduced, and ultimately passed, a bill (Int. No. 1396-2016) that would implement predictive scheduling for non-salaried fast food employees. New York City’s legislation requires employers to post a worker’s schedule at least 14 days in advance, and to pay a premium if the schedule is changed with less than 14 days’ notice. Importantly, the bill creates a private right of action for employees seeking to enforce their rights. Mayor Bill de Blasio signed the predictive scheduling ordinance into law on May 30, 2017, and it will become effective in 180 days.
Continue Reading Unfair Scheduling: How New York City’s New Predictive Scheduling Law Continues The Trend And Makes Operations More Difficult For Employers