NLRB Changes Standard for Determining Joint Employer Status

Posted in Labor Relations

The NLRB has issued a landmark decision changing its current standard for assessing “joint employer” status in both unionized and non-union workplaces. This is significant, because, even if the company is not the actual employer of workers, the company may be required to bargain with a Union and held liable for unfair labor practice charges if found to be a “joint employer.” As a result of the decision, two or more entities can now be considered as “joint employers” if: (1) the entities are both employers within the meaning of common law; and (2) the entities share or codetermine matters governing the essential terms and conditions of employment. In the case, the NLRB addressed whether Browning-Ferris Industries of California, Inc. (BFI) was a joint employer of the workers supplied by the staffing agency, Leadpoint Business Services (Leadpoint). While it was already determined that Leadpoint serves as an employer, the Union challenged an earlier decision that concluded BFI was not a joint employer.

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Immigration Laws Impacting the Workplace

Posted in Immigration Planning & Compliance

The H-1B visa program has been one of the most successful programs in U.S. immigration history, allowing for U.S. entities to hire and place highly skilled workers, holding at least a bachelors’ degree or the equivalent, into specialty occupation positions with their companies. However, the rigid cap of 85,000 new annual H-1B visas (which includes a carve out of 20,000 new H-1B visas available to workers with U.S. Masters degrees) remains at levels established in the 1990’s. As the economy has remained healthy, demand for H-1B visas this year was almost triple this insufficient quota. At current levels, this clearly signals inevitable disappointment for a significant number of applicants attempting to secure a visa under the program. What options do both employers and potential employees have? Continue Reading

Non-Compete and Trade Secret Provisions: Protecting Your Company and Assets

Posted in Non-Compete & Trade Secret Litigation

Now more than ever, employers must take active steps to protect their confidential information and trade secrets from the prying eyes of competitors. In our digital age, trade secrets can be misappropriated in an instant, and without the proper agreements in place, any business can be vulnerable. Recent major court cases involving companies such as Google, Amazon, and other industry giants highlight the importance of protecting such vital business information. One way to ensure your business is protected is to use restrictive covenants such as non-compete agreements to legally bind employees and ensure that valuable business information is not compromised or handed over to a competitor. While non-compete agreements were traditionally disfavored, and often prohibited outright by the common law, they are now making a resurgence as states throughout the country enact laws designed to protect employers’ legitimate business interests. Florida is a prime example, having put into place a statutory scheme setting forth in detail the requirements necessary to enforce non-compete agreements against former employees. To be enforceable, not only must a non-compete agreement be reasonable in time and geographic scope, it must protect a legitimate business interest and protect information the employer has tried to keep confidential.   Continue Reading

Data Security Issues in the Workplace: It’s 10:00 p.m. – Do You Know Where Your Company’s Data Is?

Posted in Privacy

It seems that not a day goes by without another massive data breach incident providing fodder for the morning headlines or the evening news. That should come as no surprise. According to key studies, the average company experienced more than 91 million security events in 2013 and 33 percent of Fortune 100 organizations will experience an information crisis by 2017, due to their inability to effectively value, govern, and trust their enterprise information. Lawmakers, regulators, insurers, and plaintiffs’ lawyers have all taken keen notice, adding heightened duties, expectations, risks, and exposure for companies regarding data privacy and security. These headaches are in addition to the harm to an organization’s reputation and customer base that often follows a cybercrime or significant data breach. Thus, it is no wonder that data security and privacy are fast-becoming a major concern for companies of all types and sizes. Continue Reading

D.C. Circuit Reinstates Home Health Care Regulations

Posted in Labor Relations, Wage & Hour

Earlier this year, we brought news that the DOL had revised its regulations applicable to home health care workers. Those regulations, which related to domestic workers who provide “companionship services,” narrowed significantly the classes of workers who were exempt from the minimum wage and overtime protections of the FLSA by removing the ability of home health care agencies to claim any exemption, as well as redefining which activities constitute “companionship services.” The regulations were a sweeping change in the industry, especially after nearly forty (40) years of the availability of the exemption for these workers. In response, trade associations challenged the regulations in court, and the D.C. District Court invalidated the regulations, which was appealed by the DOL. Continue Reading

Effective Management of Employee Medical Issues in 2015

Posted in Disability, Medical & Other Leaves

Compliance with the Family & Medical Leave Act and the Americans with Disabilities Act continues to cause issues for even the most experienced workplace professionals. In recent years, both the FMLA and ADA have expanded coverage for employee medical issues. For example, employees who are approved for FMLA-covered intermittent leave must be permitted to use that leave in one-hour increments (or even smaller increments if an employer permits these short bursts of leave for non-FMLA absences). Likewise, the ADA’s current version now covers most employee health conditions and, instead, places the emphasis on whether employers have taken all available steps to make reasonable accommodations for disabled workers. Continue Reading

The NLRB Expands Its Reach in the Non-Union Workplace

Posted in Employee Handbooks & Policies, Labor Relations

The National Labor Relations Board continues to infiltrate the workplace even where there are no unions. Standard workplace policies — including those relating to employee conduct, protecting intellectual property, use of personal electronics, and conflicts of interest — are unlawful, according to a recent memorandum issued by the NLRB General Counsel. Basic contract and policy provisions requiring employees to maintain the confidentiality of business information, be respectful of others, and not send inappropriate emails may be unlawful in the NLRB’s eyes. In addition, the agency continues to expand the concept of “protected concerted activity” to cover employees engaged in social media posts outside of work and to challenge employer non-disparagement, arbitration, and “at-will” employment policies. Continue Reading

FLSA: Changes Continue to Affect Employers

Posted in Wage & Hour

This past year has brought major changes to the laws affecting wage and hour issues. The Department of Labor has been particularly active this year putting out its first Administrator’s Interpretation regarding independent contractors. The Department of Labor also made a big splash with its long anticipated proposed new regulations to update the Fair Labor Standards Act’s “white collar” exemptions. Also, the Supreme Court has weighed in on the issue of what is work time with its ruling in Busk v Integrity Staffing Solutions that time spent in pre and post security checks is not compensable time. Finally, the Second Circuit rejected the Department of Labor’s test to determine who is properly classified as an unpaid intern. When looked at as a whole, the issues of who is an employee, who is exempt from minimum wage and overtime, and what is compensable time has changed dramatically. While these court decisions and administrative rules are specific, they will have a broad effect on the way some companies do business. Continue Reading

Employment Law Trends for 2015

Posted in Labor Relations, Wage & Hour

Few can quibble with the fact that 2015 has been a busy year for employment law. From historic pronouncements of the Supreme Court concerning fundamental and civil rights, to the Department of Labor’s release of guidance to curb misclassification and proposed new regulations to update the Fair Labor Standards Act’s “white collar” exemptions, to the General Counsel of the National Labor Relations Board’s warning that many employee handbooks and policies may be unlawful, it is difficult for employers to keep up with all the changes this year has brought. However, it is important for employers to recognize the trends and to implement changes as necessary to prepare their businesses for the future and to avoid liability in an era of ever-increasing regulation concerning the employer/employee relationship. Continue Reading

The e-Workplace: Balancing Employer and Employee Rights

Posted in Privacy, Social Media

Facebook. Twitter. LinkedIn. YouTube. Blogs. Email. Texts. Social media and the “E-Workplace” have become a fact of life for all employers. Companies have learned that these social media sites can be powerful marketing tools, but also provide an open door for risk. Employees can post or write negative comments in social media that may create liability for their company, cause public relations nightmares, or even reduce profits. Continue Reading

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