In a move that surprised absolutely no one, the National Labor Relations Board has reversed course on yet another issue – the standard for determining whether an individual is an employee, who is subject to the National Labor Relations Act, or an independent contractor, who is not. The Board’s decision will once again make it harder to establish independent contractor status.Continue Reading U-Turn! NLRB’s “Modified” Independent Contractor Standard Favors Findings of Employee Status
As you may be aware, there is some contentious litigation ongoing between the PGA Tour and LIV Golf, a new and controversial golf league financed by the Saudi Arabian Public Investment Fund (i.e. the Saudi Arabian government) that aims to become a competitive alternative to the PGA Tour. If you’ve successfully avoided the barrage of news stories on the issues, I’ll summarize the main points for you here:
Continue Reading Wait, Is that Pro Golfer an Employee or Independent Contractor?
As individuals beyond front-line healthcare workers are becoming eligible for the vaccine, the Centers for Disease Control and Prevention (CDC) has just released a toolkit for employers of essential workers, to join those that it previously released for medical centers/clinics/clinicians, and long-term care facilities. Although targeted for these specific employers, the resources provide information and resources that are applicable to employers generally.
Continue Reading More Guidance from the CDC on Workplace Vaccination Programs
On January 6, 2021, the U.S. Department of Labor announced its Final Rule to provide guidance on the determination of whether a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The Final Rule, which largely adopts the Proposed Rule (discussed in our September E-update), is scheduled to take effect on March 8, 2021 – after the change in administration. These so-called “midnight regulations,” issued during the lame-duck period between the election and the new president’s inauguration, can be placed on hold by the incoming President before they take effect – and President-Elect Biden has already indicated that he will issue an executive order that will halt or delay all such midnight regulations.
Continue Reading DOL’s Final Rule Makes It Easier to Achieve Independent Contractor Status – But Will It Take Effect?
The National Labor Relations Board issued two decisions of major interest to employers on December 14, 2017 – (1) adopting a new, more balanced test for evaluating whether workplace rules infringe upon employees’ rights under the National Labor Relations Act and (2) overturning the broad standard for determining joint employer status and returning to the prior, more practical standard.
Continue Reading NLRB Overturns Employee Handbook and Joint Employer Standards
Employers rejoice! The Trump administration continues to roll back the anti-business positions asserted by various federal agencies under the Obama administration, as most recently evidenced by the Department of Labor’s June 7, 2017 withdrawal of two Administrator Interpretations on joint employment and independent contractor status.
Continue Reading DOL Withdraws Guidance Documents on Joint Employment and Independent Contractor Status
So as an employment defense attorney, I am constantly amazed by the creative arguments put forth by plaintiffs and their attorneys. I am certain that the creators of certain laws would never, in their wildest dreams, have anticipated how they could be applied. A recent example of this can be found in Stevens v. Oval Office, LLC dba Oval Office Gentlemen’s Club.
As you may know, a recent hot topic for federal and state agencies is the misclassification of employees as independent contractors. According to the U.S. Department of Labor’s newly created webpage, misclassification hurts employees by denying them: minimum wage and overtime pay, the protection of federal and state employment laws, workers’ compensation and unemployment insurance, workplace health and safety protections, and employer-provided benefits. It also hurts non-compliant employers who may be subject to fines and unpaid taxes and wages, as well compliant employers who face unfair competition from those who reduce their costs by being non-compliant. And it hurts government agencies who do not receive the appropriate employment tax revenues.
Continue Reading Exotic Dancer Improperly Fined for “Faulty Workmanship”?
So 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
So the Department of Labor is on a mission to extend the reach of the Fair Labor Standards Act. Following on the heels of the proposed overtime regulations, in which the DOL is seeking to expand the number of workers eligible for overtime pay (and thereby increase their income – at least theoretically), the DOL…
Employers did not need another reason to complain about the burdens of the Affordable Care Act (“ACA”). Most of us know that the law includes onerous obligations on employers that have made human resources and benefits personnel’s jobs increasingly difficult. For example, you have to figure out if the law applies to your organization (how…