question-markFollowing my post last week on the EEOC’s latest pronouncement on independent contractor status, it seemed appropriate to follow up with the National Labor Relations Board’s most recent activity on this issue. The Board’s Office of the General Counsel (OGC) released an advice memorandum in which it first reviews the Board’s test for independent contractor status (which is, of course, different than that of the EEOC) and then goes on to assert that the misclassification of employees as independent contractors is a violation of the National Labor Relations Act.  (Curiously, it appears that the OGC actually issued the memo in a pending case, Pacific 9 Transportation Inc., back on December 18, 2015, but it only recently released it to the public on August 26, 2016. I suppose that the Board realized that this is an issue of significant interest to employers!) Continue Reading NLRB on Independent Contractor Status

question-markSo I was trolling through the Equal Employment Opportunity Commission’s quarterly Digest of Equal Employment Opportunity Law (because, yes, I am that much of an employment law nerd), and came across an article that I thought was of particular interest: “Stating a Claim in the EEO Process: Determining One’s Status as Either an Agency Employee or Independent Contractor.” Now this article is supposed to apply only to the federal government agencies as the employer – but I think the principles set forth in it provide guidance to what the EEOC’s position would be for private employers as well. (This is important because employees are covered by federal anti-discrimination and other employment laws; independent contractors are not). Continue Reading The EEOC on Independent Contractor Status

downloadAs I’ve made clear in past posts, I am increasingly frustrated with the current National Labor Relations Board’s clearly pro-union, anti-employer approach. I find many of their decisions to have little or no relationship to common sense or logic. So I found a concurring opinion by Judge Patricia Millett in the recent case of Consolidated Communications, Inc. v. National Labor Relations Board to be of particular interest, as she expresses her “substantial concern with the too-often cavalier and enabling approach that the Board’s decisions have taken toward the sexually and racially demeaning misconduct of some employees during strikes.” Judge Millet goes on to say, “These decisions have repeatedly given refuge to conduct that is not only intolerable by any standard of decency, but also illegal in every other corner of the workplace.” (!!!!) Continue Reading Why Does the NLRB Tolerate Racist and Sexist Conduct?

no unionsOne of my partners, Liz Torphy-Donzella, recently sent me an opinion piece from the Wall Street Journal that amused me so much, I had to share it. Entitled “Big Labor’s McDonald’s Defense,” the article remarks on the fact that the Service Employees International Union, one of the most prominent unions in the United States, is fighting efforts to unionize it! (Whaaaat?!!) But wait, there’s more – although the SEIU funds the “Fight for $15” campaign, which seeks to increase the hourly minimum wage rate to $15, it pays its “Fight for $15” staff less than $15 an hour!!! (Let’s pause for a moment to let that sink in, shall we?)

And irony piles upon irony. As you may know, a major target of the “Fight for $15” is McDonalds. On the “Fight for $15” About Us webpage, McDonald’s is the only “low-wage” employer mentioned by name. And according to the Wall Street Journal article, “SEIU claims that it should be able to organize all McDonald’s workers everywhere across the country as a single bargaining unit.” Continue Reading SEIU Fights Its Own Unionization

As many of you may have heard and as we discussed in our August E-Update, last week in The Trustemortar-board-2-1551255es of Columbia University in the City of New York, the National Labor Relations Board reversed a twelve-year precedent in holding that student teaching and research assistants at private universities are statutory employees under the National Labor Relations Act and can therefore unionize.

There has been a flurry of employee-friendly decisions issued by the Labor Board in recent weeks to coincide with – not surprisingly – the conclusion of Member Hirozawa’s three-year term on August 27, 2016. This case, however, irks me more than most.  The Majority stated that preventing graduate assistants the right to unionize “deprived an entire category of workers of the protections of the [NLRA] without a convincing jurisdiction” because, according to the Majority, “even when such an economic component may seem comparatively slight, relative to other aspects of the relationship between worker and employer, the payment of compensation, in conjunction with the employer’s control, suffices to establish an employment relationship for purposes of the Act.” And yet, in 2004, the Labor Board reached a contrary conclusion – that graduate assistants are not statutory employees who have the right to unionize, because the Labor Board acknowledged that graduate assistants have a primarily academic, not economic, relationship with their universities.  So what’s changed? That is a rhetorical question.  Obviously, nothing has changed, but the make-up of the Labor Board and its current desire to expand the reach of the Act. Continue Reading The NLRB Changes Its Mind Again

shadow-dollar-sign-1239535I enjoy those cases where those (sometimes uppity) government agencies get a taste of their own medicine. I previously told you about the EEOC being sued for failing to accommodate its own employee’s disability, for example. Here’s another one – the U.S. Department of Labor, which is the federal agency that enforces the Fair Labor Standards Act (FLSA), including its overtime provisions, just agreed to pay $7 MILLION to settle a claim that it failed to pay overtime to its own employees!!! Continue Reading DOL Settles Its Own Multi-Million Dollar Overtime Suit

FLSA Poster image

The Department of Labor has issued revised versions of its “Employee Rights Under the Fair Labor Standards Act – Federal Minimum Wage” and “Employee Rights – Employee Polygraph Protection Act” posters, which all covered employers are required to post. Employers must post the revised versions as of August 1, 2016. Continue Reading Revised Mandatory Fair Labor Standards Act and Employee Polygraph Protection Act Posters Effective August 1, 2016

As you all likely know, the latest pop culture craze is Pokémon Go, where individuals use their mobile IMG_3414devices to catch Pokémon creatures. I’ve been watching my crazy teenage son play this everywhere. He was particularly excited about the Dratini that he caught at the restaurant last night, pictured here. Apparently it’s really rare. Whatever…

My son is not the only one obsessed with this game. Given the popularity of the game as well as the extensive time that players are spending on it (some have described it as an “addiction”), wise employers should be prepared to address the impact of employees playing Pokémon Go (and other games in the future) in the workplace and even on company-provided equipment. Continue Reading Pokémon Go is a No-Go in the Workplace

yoga-1159968Employers (hopefully) know that you can’t fire someone based on a legally protected personal characteristic, like race, sex, religion, age or disability (among many other things). But apparently, being “too cute” is not one of them!

In this case, Edwards v. Nicolai, a yoga instructor, Dilek Edwards, worked at a chiropractic and wellness clinic owned by Charles Nicolai and his wife, Stephanie Adams. (Ms. Adams, by the way, is the first openly lesbian Playboy Playmate (Miss November 1992), as reported by the U.K.’s Daily Mail. Isn’t that intriguing?) According to Ms. Edwards, her relationship with Dr. Nicolai was strictly professional. At one point, however, he told Ms. Edwards that his wife might become jealous of her because she was “too cute.” Ms. Edwards only met Ms. Adams once, at the office, and the meeting was cordial. Continue Reading Fired for Being “Too Cute”

U-Turn-SignIn another blow to management, on July 11, 2016, a divided National Labor Relations Board issued Miller & Anderson, in which it reversed course after more than a decade to return to the rule established in the 2000 case of M.B. Sturgis, Inc., whereby employees supplied by a staffing agency can be included in a single bargaining unit — and vote in an NLRB representation election — with an employer’s regular employees without the consent of both employers.

In 2004, M.B. Sturgis was itself reversed by Oakwood Care Center, in which the Board held that a union could organize a bargaining unit consisting of an employer’s regular employees and employees supplied by a staffing agency only if both the employer and the staffing agency consented to a combined secret ballot election.

Continue Reading NLRB Eases Unionization of Employees Referred by Staffing Agencies