Sleeping on the Job Not Enough to Bar Transgender Bias Suit

Posted in Employment Discrimination Harassment & Retaliation

A jury should decide whether a transgender employee caught sleeping on the job in a customer’s car was unlawfully terminated because of her transgender status, the Eleventh Circuit Court of Appeals has ruled. Although the employer had initially persuaded the trial court to rule in its favor, a three-judge  panel from the Eleventh Circuit (covering Florida, Georgia and Alabama) reversed that ruling and said the employee submitted enough evidence of unlawful motivation to get to a jury. Continue Reading

Employers Are Put On Notice: EEOC Issues Proposed Retaliation Guidance

Posted in Employment Discrimination Harassment & Retaliation

On January 21, 2016, the U.S. Equal Employment Opportunity Commission (“Commission” or “EEOC”) released proposed guidance to update and clarify its position on retaliation and related issues under EEOC-enforced laws, including these key points: (1) retaliation must be the “but for” cause of an employer action to be unlawful; (2) a complaint may be oral or written to be protected activity; (3) “third party” retaliation, whereby the employer takes action against an employee for another’s protected activity, is unlawful; and (4) that both protected activity and unlawful retaliation actions are to be broadly interpreted. The public has 30 days to provide feedback.  Continue Reading

Pay Data Required in Proposed New EEO-1 Reporting Form

Posted in Employment Discrimination Harassment & Retaliation

Employers with 100 or more employees will be required to submit pay data by race, sex, ethnicity and job category under proposed new revisions to the EEO-1 reporting form. The changes were announced Friday by the EEOC on the 7th anniversary of the Lily Ledbetter Fair Pay Act, and published today in the Federal Register. The additional data will “assist the agency in identifying possible pay discrimination, and will assist employers in promoting equal pay in their workplaces,” the EEOC says. Continue Reading

Department of Labor: Joint Employment Is Increasingly Common

Posted in Labor Relations

On January 20, 2016, the Wage and Hour Division of the U.S. Department of Labor issued guidance on joint employment under the Fair Labor Standards Act and Migrant Seasonal Agricultural Worker Protection Act. The DOL’s guidance comes on the heels of a landmark decision of the NLRB, which, as discussed in greater detail here, broadened the definition of “joint employer” for purposes of the National Labor Relations Act. These developments reflect a trend of extending application of the labor and employment statutes to employment relationships traditionally thought to be exempt from such regulation. Continue Reading

2015 L&E Developments

Posted in Employee Benefits, Employee Handbooks & Policies, Employment & Consulting Contracts, Employment Discrimination Harassment & Retaliation, Labor Relations, Medical & Other Leaves, Workplace Safety & OSHA

As we begin 2016, it is a good time to look back at 2015 labor and employment law developments that employers must keep in mind during the new year. 2015 was indeed a busy year. Continue Reading

NLRB Finds No Joint Employment Relationship In First Decision Applying Browning-Ferris

Posted in Labor Relations

In its first application of the landmark Browning-Ferris decision, the National Labor Relations Board (NLRB) has determined that ACECO, a contractor, was not a joint employer with Green Jobworks, its staffing agency. In Browning-Ferris, the NLRB held that two or more entities would be considered joint employers if each one possessed sufficient control over employees’ essential terms and conditions of employment. As discussed more here, 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.”

In the Green Jobworks case, the NLRB revisited the broader joint employer test of Browning-Ferris, and this time found that the Union failed to establish specific, detailed and relevant evidence demonstrating a joint employment relationship between Green Jobworks and ACECO. Green JobWorks is a staffing company that provides temporary labor to construction companies.  ACECO is a demolition and remediation contractor who supplements its workforce with Green JobWorks employees.

Green JobWorks and ACECO entered into a Master Labor Services Agreement requiring Green JobWorks to provide workers who are responsible for tracking Green JobWorks employee hours, determining breaks, and removing Green JobWorks workers from the construction site, if necessary.  Under the agreement, Green JobWorks was exclusively responsible for the following duties: (1) employee recruiting, hiring, counseling, discipline and discharge; (2) establishing and paying employee wages; (3) providing worker’s compensation insurance and fulfilling unemployment compensation obligations; and (4) maintaining personnel and payroll records for Green JobWorks employees.  Project orientation and day-to-day schedules were determined by the general contractor.

The Local Union asserted that ACECO was a joint employer because: (1) the Master Labor Services Agreement gave ACECO the right to direct  managers and supervisors, and to dismiss staff employees under certain circumstances; (2) ACECO had requested specific Green JobWorks employees with particular skills; and (3) ACECO effectively controlled the wages of Green JobWorks employees.

The NLRB rejected the Union’s argument, and distinguished the facts from those in Browning-Ferris.  ACECO’s right to refuse or terminate a Green JobWorks employee was limited and not unqualified.  ACECO could request specific employees, but the staffing agency was under no obligation to meet the request.  Additionally, Green JobWorks employees could individually negotiate higher wages, and Green JobWorks was not prohibited from paying its employees more than ACECO paid its employees.

Regarding day-to-day supervision, ACECO, who was a subcontractor, did not determine the job tasks for Green JobWorks employees.  Instead, they received project orientation and day-to-day schedules from the general contractor.  Additionally, Green JobWorks field supervisors traveled to project sites to interact with lead employees, and lead employees were responsible for tracking Green JobWorks employee hours and determining breaks and rest period.

Accordingly, the NLRB found that ACECO was not a joint employer with Green JobWorks. The decision highlights the importance of an agreement that gives as much discretion to the staffing agency as possible.  The Green Jobworks case is a reminder to franchisors, subcontractors, and business entities to pay careful attention to the “joint employer” standard.

Preparing for the Approaching ACA Reporting Deadlines

Posted in Employee Benefits

With ACA reporting deadlines quickly approaching, many employers should be preparing to address the various reporting requirements in order to avoid the significant fines and penalties associated with non-compliance. As of January 2016, employers with 50 or more full-time employees, including full-time equivalent employees (Applicable Large Employers or ALEs) will be subject to several complex ACA reporting requirements. Continue Reading

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

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