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 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.
On June 14, franchisors received good news when the US District Court in the Eastern District of Illinois ruled that Jimmy John’s Franchise, LLC is not a joint employer of its franchisees’ employees.
In 2014, former employees of various Jimmy John’s franchisees brought a collective action against their former franchisee employers and against Jimmy John’s Franchise, LLC. The former employees alleged they were misclassified as exempt under the FLSA and consequently denied overtime pay. They also claimed that Jimmy John’s, as an alleged joint employer, was jointly liable for their damages.
On summary judgment, the Court applied a modified version of the Seventh Circuit’s Moldenhauer test to determine joint employment. It stated that all of the factors reviewed boiled down to one essential question: whether
Jimmy John’s exercised control and authority over franchise employees in a manner that caused the FLSA violation (at least in part). And, the Court determined that the evidence demonstrated that the franchise owners determine how to classify and compensate franchise employees — not Jimmy John’s. As such, Jimmy John’s did not exercise control over the alleged FLSA violation and was not a joint employer.
Click here to read more on the decision and its impact on franchisors.
Originally published by Bloomberg Law.
Pay equity is a hot button issue for employers in the United States for a number of reasons—reputational concerns are triggered with increasing shareholder demands for transparency; activist investor groups are pushing companies, particularly in the financial services and technology industries, to disclose gender pay data; and, in the wake of pay equity in the news, employees are asking more questions about the issue.
Compounding the pressure, the gender pay gap also can impact talent acquisition. A recent Glassdoor survey found that 67% of US employees say they would not apply for jobs at employers where they believe a gender pay gap exists. The impact is magnified when looking at millennials. Approximately 80% of millennials, as noted in the Glassdoor survey, say they would not even apply for a job if they believed the company had a gender pay gap, which drives home the point that focusing on equality is, among other things, essential for a positive employer brand in the US market.
Click here to read on.
“The Dynamex Case: A New Threat to Franchising?” alerts franchisors to the California Supreme Court’s recent opinion in Dynamex Operations West Inc. v. The Superior Court of Los Angeles County.
Although not a franchise case, the decision cites two cases that used the ABC test to determine that franchisees were employees of a franchisor, not independent contractors. Assuming the Dynamex test is applied to franchising, it could have far-reaching consequences for our franchise clients with operations in California.
As we previously posted, on January 5, 2018, the Department of Labor did away with its previous six-factor test and announced a new “primary beneficiary” test to determine whether interns and students working for “for-profit” employers are entitled to minimum wages and overtime pay under the Fair Labor Standards Act. See our previous post HERE, as well as the DOL’s Fact Sheet #71 HERE. While employers are required to pay employees for their work, in some circumstances, interns may not actually be employees under the FLSA, and therefore, can be unpaid.
Whether your company is already planning to bring on unpaid interns, or to the extent your company would like to explore the possibility of a new unpaid internship program, you will want to consider the DOL’s new primary beneficiary test so as to guard against potential costly claims for pay and/or overtime.
Please reach out to your Baker McKenzie lawyer for more details.
If you’re an employer with calls coming in from concerned managers or an employee with the immigration message boards on constant refresh, you’re not alone.
As if the executive orders and policy shifts in the last year weren’t enough to disrupt the workforce, potential changes on the horizon for certain employment authorized spouses of H-1B visa holders (known as H-4 visa holders) are a cause for concern among employers and employees, alike.
On February 21, 2018, the US Supreme Court narrowed the definition of the term “whistleblower” under the Dodd-Frank Act. The Court found that to be a “whistleblower” covered by Dodd-Frank’s anti-retaliation provision, an employee must report concerns about their employer’s conduct to the Securities and Exchange Commission. In other words, an employee who reports such concerns only internally is not entitled to protection under Dodd-Frank.
On February 1, 2018, the Office of Federal Contract Compliance Programs (OFCCP) sent 1,000 Corporate Scheduling Announcement Letters (CSALs) to federal contractors informing them that they may be audited for compliance with federal non-discrimination requirements/affirmative action plans.
On January 5, 2018, the Department of Labor did away with its previous six-factor test and announced a new “primary beneficiary” test to determine whether interns and students working for “for-profit” employers are entitled to minimum wages and overtime pay under the Fair Labor Standards Act. Employers are required to pay employees for their work, but in some circumstances, interns may not actually be employees under the FLSA, and therefore, can be unpaid. The DOL stated that the new test “allows increased flexibility to holistically analyze internships on a case-by-case basis.”
The new “primary beneficiary” test looks at whether the intern or the employer is the primary beneficiary of the relationship. Several circuit courts, including the Second and Ninth, have previously favored the “primary beneficiary” test, viewing it as being more up to date and aligned with the underlying purpose of an unpaid internship.