NLRB Brings Back Independent Contractor Test

By Patrick Scully In a case handled by Sherman & Howard’s Labor and Employment Department, the National Labor Relations Board (“NLRB”) returned to its traditional independent contractor test, reversing the Obama Board’s 2014 decision in FedEx Home Delivery, 361 NLRB 610, and finding the Dallas/Ft. Worth SuperShuttle franchisees to be independent contractors.  The Board explained […]

Happy New Year! Joint Employer Test Gets Muddier

By Patrick Scully On December 28, 2018, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision partially granting enforcement to the National Labor Relations Board’s controversial decision in Browning-Ferris Industries (316 NLRB No. 186 (2015), “BFI”) which radically altered the test for when separate companies can be declared “joint employers” […]

New Board Restores Proper Joint Employer Test

By Bernie Siebert Yesterday the newly constituted Trump Board overruled the Obama-era joint employer test that has caused confusion and legal uncertainty for many employers. Hy-Brand Industrial Contractors, Ltd. The Board’s test in the much criticized Browning-Ferris Industries case was that “direct and immediate” control was not necessary to establish that two employers were “joint employers.” Rather, […]

DOL Trashes Obama-Era “Guidance”

By John Alan Doran Wednesday the DOL announced that it was withdrawing two critical pieces of “guidance” issued under the Obama administration.  The first piece addressed the DOL’s rather narrow view of who is an independent contractor (S&H Blog Post: DOL Says Employers Are Morons). The second piece established an extremely broad view of joint […]

Staffing Company Has to Ask

By Bill Wright The Fifth Circuit Court of Appeals expanded on the EEOC’s guidance on a staffing company’s liability for its client’s discriminatory decisions. According to the court, a staffing company may be liable when a client asks the staffing company to remove a particular assigned employee, if the staffing company knew or should have […]

Joint Employment for Wage/Hour

By Andy Volin The Department of Labor’s Wage and Hour Division (“WHD”) has issued new guidance on joint employer status. The guidance re-emphasizes that companies that share workers with associated companies, or that subcontract work to other companies, may have compliance responsibility for wage and hour laws. In other words, using a staffing agency or […]

EEOC to Pay One Mmmillion Dollars

By Bill Wright In EEOC v. Global Horizons, Inc. et al., No. CV-11-3045-EFS (E.D. Wash.), the court determined that the EEOC had conducted a shoddy administrative investigation and lacked a factual basis to pursue its theory of joint-employer liability against the defendants. The court invited the defendants to petition for attorney fees. They requested over […]

NLRB: Everyone’s a Joint Employer

By Patrick Scully In a widely dreaded reversal of more than 30 years of precedent, a majority of the NLRB found that an alleged joint employer does not have to actively “codetermine” or control terms and conditions of employment in order to be considered the “employer” of its contractor’s employees. Under the standard announced yesterday, […]

FMLA Only Seems Easy

By Bill Wright This FMLA case gives the wrong impression. Cuellar v. Keppel Amfels, LLC, No. 12-40165 (5th Cir. September 9, 2013). In this case, the company “leased” workers from a staffing agency. When one worker went out on maternity leave, the company replaced her. (The staffing agency was the primary employer and provided the […]