The Department of Labor (DOL) has proposed to put the final nail in the coffin on two Trump era rules under the Fair Labor Standards Act (FLSA) that were favorable to employers. On March 12, 2021, the DOL’s Wage and Hour Division published in the Federal Register both a proposed rule to rescind the Trump administration’s rule on joint employer status under the FLSA and a proposed rule to withdraw the Trump administration’s rule on independent contractor status under the FLSA. In both cases, the DOL is seeking public comments for 30 days (until April 11, 2021). Neither of these proposed rules comes as a surprise to those keeping tabs on the Biden administration’s agenda, but the DOL has not proposed any new guidance, leaving employers wondering what comes next.

Continue Reading The DOL Proposes to Nix the Trump Administration’s Joint Employer and Independent Contractor Rules

The US Department of Labor is developing a new regulation on joint employment under the FLSA, a possible first step towards reversing the Trump administration’s business-friendly rule on the joint employer standard.

First Public Notice of Possible New Regulation

On February 23, the White House Office of Information and Regulatory Affairs (OIRA) posted on its

On August 8, 2020, a New York federal district judge struck down a significant portion of the DOL’s “joint employer” rule, meaning certain employers may be more likely to be deemed “joint employers” and exposed to liability for employee wage and hour violations under the FLSA. The “joint employer” final rule, which was issued by the DOL in January 2020, imposed a four-factor test for deciding whether employers in “vertical” employment relationships (i.e., when workers for a staffing company or other intermediary are contracted to another entity) are joint employers under the FLSA.

Continue Reading Are You A Joint Employer Now? Part of DOL’s “Joint Employer” Final Rule Struck Down

In February 2020, the NLRB finally unveiled its long-awaited joint-employer rule governing joint-employer status under the NLRA. The final rule returns the test for determining joint employment to the standard the Board applied for several decades before the 2015 Browning-Ferris decision. The test set forth by the new joint-employer rule provides that a business is a joint employer only if it has “substantial direct and immediate control” over another company’s workers and actually exercises that control. While this is no doubt a welcome relief for employers who routinely contract with subcontractors and staffing companies, it is important to note the limited scope and that this rule does not impact joint-employer tests applied under other employment laws. The proposed rule was initially released in late 2018 and ultimately generated nearly 30,000 public comments (see our coverage here).

Although the rule is an employer-friendly change, employees who are terminated for engaging in protected concerted actives will continue to have a claim for relief against their primary employer. Similarly, union organizing efforts can continue amongst temporary employees as they have for years. Bargaining will continue to occur as it always has between employers and their employees’ union representatives. The labor movement, however, is likely disappointed by the demise of the 2015 Browning-Ferris rule.  For years, unions have chaffed at the prohibition against secondary boycotts contained in the Taft Hartley Act of 1947. The 2015 Browning-Ferris rule allowed a backdoor repeal of a significant portion of the secondary boycott ban with its loose definition of joint employer.

Continue Reading Much Ado About Joint Employers at the NLRB

Everything You Need To Know Right Now

After a “warp speed” Senate vote overwhelmingly approving the Families First Coronavirus Response Act (FFCRA), President Trump signed the FFCRA into law yesterday. The legislation is historic; it was not only enacted in days instead of the usual months, but for the first time in US history, many

In a significant decision for the service provider community, this month the National Labor Relations Board dismissed a claim that an employer was required to provide its employees’ union the service contracts it had with its customer. G4S Security Solutions USA, Inc. 369 NLRB No. 7 (2020). The panel decision was unanimous. Notably, however, the decision left open the possibility that a union could require the production of a service agreement if it could demonstrate the agreement was relevant to bargaining.

Continue Reading Withholding Service Contracts Not Unlawful

Companies with operations in California can exhale slightly, with the Ninth Circuit Court of Appeal and another California appellate court recently concluding, separately, that the rigid “ABC Test” established in Dynamex v. The Superior Court of Los Angeles County does not apply in the joint employer context.

Continue Reading Courts Confirm Martinez – Not Dynamex – Applies To Joint Employer Claims In California

We’re excited to announce a new article authored by Jim Baker that was published in the Summer 2019 issue of the Benefits Law Journal.

In this article, Jim covers how the dramatic increase in the number of workers who are classified as independent contractors is changing how employers and workers interact, specifically the implications on

In a welcome decision for franchisors, and first of its kind in the Second Circuit, the Southern District of New York ruled that Domino’s Pizza Franchising LLC, the franchisor (Domino’s), did not exert enough control over its franchisee to warrant joint employer status. This determination means Domino’s will not have to face claims brought under

In a flurry of high-profile decisions issued on the eve of NLRB Chairman Phillip Miscimarra’s term’s expiration, the NLRB has announced employer-friendly standards reversing recently adopted analyses and restoring the historical analyses in perhaps the two most watched (and criticized) categories of employer unfair labor practice (ULP) charges: (1) evaluating work rules for impact on protected concerted activity (formerly the Lutheran Heritage analysis); and (2) joint employer liability (formerly the Browning-Ferris analysis).

Impact on Employers:

As a result of the “new” work rule analysis, employers will be less likely to face scrutiny of employee handbook provisions. Employers now have broader discretion to implement and enforce handbook provisions relating to civility in the workplace and workplace safety (i.e., no cell phone/camera policies, social media). Employers who have dramatically trimmed employee conduct policies have some freedom to reinstate more usable and effective rules, but should note that this area of law is almost certain to fluctuate based on the presidential administration in power.

With the reversal of the joint employer analysis, employers will have less labor risk (bargaining obligations and strikes) when engaging third parties like staffing companies, temporary workers, or co-located workers. Critically, the prospect of becoming bound to a bargaining obligation with  another entity’s employees will be substantially less likely. Avoiding joint employer liability will focus more limiting actual control and direction of non-employees and less on the contractual arrangements with other entities supplying those employees. While this change is unlikely to dramatically change the scope of outsourcing, employers can have more certainty of the scope of potential ramifications and liability in using third party workers.

Continue Reading Signaling Major Change, NLRB Yanks ‘Joint Employer’ Standard And Adopts A More Pro-Employer Stance On Workplace Policies