Earlier this year, the NLRB attempted to overturn the Obama-era Browning-Ferris joint employer standard through case law (see our coverage here). That was a dead end so now the Board seeks to return to the pre-2015 standard through rulemaking. Continue Reading NLRB Proposes A More Employer-Friendly Joint Employer Standard

In August, the United States Court of Appeals for the Sixth Circuit (covering Kentucky, Michigan, Ohio and Tennessee) upheld an arbitration agreement that required individual arbitration of claims under the federal Fair Labor Standards Act (FLSA). The Court’s decision is in line with the United States Supreme Court’s decision in Epic Systems Corp. v. Lewis.

Continue Reading Sixth Circuit Upholds Mandatory Arbitration Of FLSA Claims

US Secretary of Labor, Alexander Acosta, recently announced the creation of a new office, the Office of Compliance Initiatives. The “OCI” will be tasked with promoting greater knowledge of federal labor laws and regulations through enhanced compliance assistance outreach efforts. The goal of the OCI initiative is to prevent workplace violations.

Continue Reading The DOL Creates A New Compliance Office And Announces Six New Opinion Letters

In recent years, joint employer liability has emerged as a persistent threat for companies who use franchise business models. Franchisors are increasingly facing claims brought by employees of franchisees for entitlements flowing from their employment. The outcome in these cases is unpredictable because the law is undergoing change. As such, the joint employer aspects of franchising arrangements can prove to be a minefield for the unwary and are a growing global concern.

Click here to read the full article (originally published in the September 2018 edition of Franchising World), which covers key developments in joint employer liability for franchisors operating in Australia, Canada and Mexico and describes a proactive approach to help mitigate risk.

With the modern workforce comes modern employment problems. Businesses and workers alike have embraced the “gig economy,” but employment laws were not designed for workforces dominated by independent contractors and freelancers. This disconnect leaves gig economy businesses open to significant liability where such workers should have been classified as employees under the law.

Continue Reading New York Delivers Good News For Independent Contractors, But Risks Remain

Last month the California Supreme Court ruled in favor of a class of 1,400 student bus drivers who sued their employer for failing to comply with state background check laws. The Court’s decision is notable because it is part of a broader trend of states and cities making it more difficult for employers to use background checks. Under Connor v. First Student, Inc., employers in California must comply with overlapping statutes regulating investigative consumer reporting agencies.

Continue Reading California Supreme Court Pro-Employee Ruling Affirms Employer Duty To Comply With Overlapping Background Check Laws

This month the California Supreme Court reaffirmed that workers’ compensation laws are the exclusive remedy for an employee’s injuries. In King v. CompPartners, the Court ruled that an employee’s tort claims against a utilization review company and a doctor performing a mandatory utilization review were preempted. In so doing, the Court reminded employees that the Court construes the Workers Compensation Act (WCA) liberally and broadly, in favor of awarding workers’ compensation, not in permitting civil litigation.

 

Continue Reading California Supreme Court Affirms Broad And Liberal Construction Of Workers’ Compensation Exclusivity Provision

New York state just released draft guidance and models for employers to comply with the state’s new sexual harassment prevention policy and training requirements, which go into effect on October 9, 2018. The state is encouraging comments from the public, employers and employees through September 12, 2018, which can be submitted through the state’s website.

Continue Reading New York State Releases Proposed Sexual Harassment Prevention Guidance

A recent decision by the National Labor Relations Board left experienced labor practitioners scratching their heads. In Tschiggfrie Properties Ltd. v. NLRB, a three-member panel of the Eighth Circuit did more.

The panel vacated the NLRB’s decision in a case involving an employee who was fired for abusing his employer’s Wi-Fi and for sleeping on the job. (The same employee also initiated the process of unionizing the workforce and served as an observer for the union election.) Before the appellate court, the NLRB unsuccessfully argued that a showing of a nexus, or a link between the employee’s protected activity and the adverse employment action, was not required to satisfy the employee’s initial burden in a wrongful termination case. The Eighth Circuit found that the NLRB misapplied the burden of proof, vacated the NLRB’s order and remanded the case with instructions to reconsider whether the general counsel could make the appropriate showing.

Click here to read more about this case, the reminder its decision serves and next steps employers should take.

Craig Lee and Will Woods from Baker McKenzie’s Antitrust & Competition team shared the following update regarding no-poach agreements:

In July 2018, State Attorneys General from 11 states formed a coalition to investigate no-poach agreements in franchise contracts that restrict the ability to recruit or hire employees from the franchisor or another franchisee of the same chain. As part of the investigation, the coalition requested information about no-poach policies and practices from several fast food franchises.

Continue Reading Risks Of Employee No-Poach Agreements