This could be a busy week for developments in the joint employment area.
1) Congressional Republicans have begun drafting legislation that could change the definition of joint employment, Bloomberg BNA reports. Presumably the goals of a new bill would be (a) to add clarity to the standards for deciding who is a joint employer, and (b) to make it more difficult for workers or unions to claim they are jointly employed.
In the Lynyrd Skynyrd song, “Gimme Three Steps,” we find our hero cutting a rug down at a place called The Jug with a girl named Linda Lou. This catchy song has nothing to do with labor law but does deal with someone who finds himself in a bad situation (shakin’ like a leaf on a tree!) and needs three steps to get out the back door.
Same thing here (in a sense). [C’mon, work with me here, I’m trying to make NLRB appointments interesting!]. When not posting tweets of himself pummeling a photoshopped CNN logo outside a WWE ring, President Trump found the time to make two important nominations to fill vacancies on the National Labor Relations Board (NLRB), giving companies two of the three steps needed to undo a long list of anti-business decisions from the past eight years.
The two new appointmnents, once confirmed, will shift the Board back to a 3-2 Republican majority, which should spell relief for businesses in several areas — including joint employment. (Two appointments = two steps. There’s a third step coming. Wait for it….)
The Family and Medical Leave Act (FMLA) is already one of the hardest employment laws to comply with. Add joint employment into the mix, and the level of difficulty further increases.
Here are some pointers for handling FMLA issues when joint employment is likely to exist:
Issue 1: Is there Joint Employment?
To determine whether two companies are joint employers under the FMLA, the Economic Realities Test is used. This is the same test used under the Fair Labor Standards Act (FLSA). (See this post for a recent development that threatens to expand the definition of joint employment under the FLSA.)
The DOL has advised that in most staffing agency relationships, there is joint employment.
Issue 2: How Does Joint Employment Affect An Employee’s FMLA Eligibility?
Everybody has an opinion, so why not share?
This week, Labor Secretary Alex Acosta announced that the WHD will resume its prior practice of issuing opinion letters to advise on difficult wage and hour issues. This is good news for companies and employees because it increases predictability.
An opinion letter is an official, written opinion by the WHD of how a particular law applies to a specific set of circumstances presented by an employer or employee. The benefit to the general public is that opinion letters are published and may be relied upon.
Remember this?
Suppose the chip is a check, and the employee tries to cash it twice? Who would you rather be, Costanza or Timmy?
Staffing agency clients are increasingly pointing to a fraud committed by disloyal short-term employees. They cash a paycheck on their mobile app, then deposit the paper check a second time for duplicate payment. The check clears twice. Who must pay?
While this problem can arise in many scenarios, including with regular W-2 employees, it seems to be occurring more frequently with staffing agency employees, PEOs, temps, and other short-term workers. So let’s take a look.
It seems like every month another professional athlete is caught using a prohibited substance. The typical script (after getting caught) is to blame the maker of a supplement. “I should have more carefully checked the label,” or “I had no way of knowing what was in that synthetic elephant urine.”
Fair or unfair, every athlete knows that he/she is responsible for what goes into the athlete’s body, whether the juicing was intentional or not.
The same rule applies to companies who use staffing agencies.
Did the new Labor Secretary of Labor finally throw employers a bone? I think so, but it’s too early to tell whether it’s delicious bacon-flavored or some generic processed meat flavor.
On June 7th, the Department of Labor (DOL) announced it was withdrawing the 2015 and 2016 informal guidance on joint employment and independent contractors.
Read the full post here, on BakerHostetler’s Employment Law Spotlight blog.
Are franchisors responsible for the wage and hour violations of their individually owned franchisees?
This question continues to vex the courts. (Vex! Great Scrabble word!) Despite the promise of more pro-business policies from the current administration, lawsuits filed by employees against franchisors show no signs of slowing down. Here’s why.
When employees allege wage and hour violations against individually owned franchisees (your local store), such as a failure to properly pay overtime, the employees usually try to convert that lawsuit into a class action.
This week, I am encouraging readers to tune in to this podcast from XpertHR, in which I discuss issues and hot topics related to independent contractor misclassification.
Topics covered include:
I hope you enjoy this interview, and thank you to David Weisenfeld and Xpert HR.
What is a “temporary employee”? I have practiced employment law for 20 years (Note to self: Keep practicing; someday you’ll get good at it.) and I can’t tell you. It’s a state secret. All lawyers have been sworn to secrecy forever.
Either that or, if you really want to know and say “pretty please” (with or without sugar on top, but no artificial sweetener please), that term has no legal significance. Usually the term is used to mean one of two things:
Under option 1, the “temp” is a regular W-2 employee of yours, probably employed at will like your other employees, but whether you call that person “temp” or “permanent” or “regular” or “irregular” (?), none of it matters. A temp worker who is your employee, paid subject to deductions, is your employee. Temp time counts toward FMLA eligibility. Continue reading
Who Is My Employee? 