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New Paid Sick Leave Laws Compel Employers to React — and Prepare (Part II)

As discussed in Part I (posted earlier this week), a number of states and local municipalities have enacted paid sick leave legislation mandating paid time away from work for employees. While some of these laws are already in effect, others are coming soon.  Employers with operations in the following areas should revisit their policies and make adjustments as needed to plan for these upcoming changes: [Read more →]

September 21, 2016   No Comments

New Paid Sick Leave Laws Compel Employers to React — and Prepare (Part I)

A number of states and local municipalities have recently enacted paid sick leave legislation mandating paid time away from work for employees. Unfortunately for employers, many of these laws contain provisions that conflict with already-enacted paid sick legislation and require an adjustment of current policies, leading to confusion about requirements and entitlements.


Employers with operations in the following areas should revisit their policies and make adjustments as needed to remain current or to plan for upcoming changes: [Read more →]

September 19, 2016   No Comments

Could A Franchisor Be Liable For A Franchisee’s Employment Decisions?

Franchise agreements typically make clear that a franchisee is a separate entity from the franchisor and that the franchisor has no liability as an employer of anyone the franchisee hires and employs.  Indeed, traditionally franchisors have not been routinely deemed joint or co-employers with their franchisees.  This is because the franchisor usually does not control hiring, firing, wages, breaks, and other day-to-day operations of the franchisee to the extent necessary to create an agency relationship between a franchisee’s employee and the franchisor.  A recent case decided by a federal court in California, however, might put that traditional thinking and legal relationship in doubt. [Read more →]

September 1, 2016   No Comments

Safely Preventing Workplace Violence

If you are an HR professional, you surely worry about workplace violence.  Whether it is an “active shooter” at work or just an argument that turns physical between two employees, the concern about workplace violence and the harm it can cause — both to those directly involved and everyone else who works there — is quite real and undoubtedly scary.

I recently read an article from the Business Journal publications that I found useful:  “Preventing Workplace Violence: What to Listen For, Look For, Notice and Do.”  This article discusses issues surrounding workplace violence prevention and offers some “identifying signs and symptoms” that can be a precursor to violence.  [Read more →]

August 25, 2016   No Comments

Have You Gotten An Email from the EEOC?

Did you know that at the beginning of 2016, the EEOC rolled out Phase I of its Digital Charge System, which provides an online portal system for employers to access and respond to a Charge of Discrimination? If you didn’t know, you are not alone. Many employers have been surprised to receive an email from the EEOC stating that a Charge has been filed and providing a password to access the EEOC’s secure online portal. The email provides a deadline for the employer to log in to the portal. Once logged in, the employer may view and download the Charge, respond to mediation requests and upload position statements it creates for the EEOC to review. (The EEOC asserts that information uploaded to the portal are encrypted and protected by proper security controls.) The EEOC’s plan is to no longer send hard copies of these documents to employers. [Read more →]

August 16, 2016   No Comments

The Defend Trade Secrets Act: What Does it Really Mean for Employers? The Good, the Bad and the Ambiguous, Part 1

Signed into law on May 11 of this year, the federal Defend Trade Secrets Act of 2016 (“DTSA”) amends the Economic Espionage Act to create a private civil cause of action for trade secret misappropriation, and it has been hailed by the New York Times and other authorities and media outlets as the “most significant expansion in federal intellectual property law in the past 70 years.”  Yet, for decades, state trade secret laws have already been a fundamental source of protecting the confidential information of business in the United States.  [Read more →]

August 9, 2016   No Comments

I-9 Violation Fines Increased!

Listen up, employers:  On August 1 — that’s two days ago! — the Department of Homeland Security increased the Form I-9 violation fines by approximately 96%.  Specifically, the range of fines for violations went from $110-$1,100 per Form I-9 to $216 -$2,156 per Form I-9.  This could be particularly problematic for larger companies, as an untrained staff person completing numerous I-9s incorrectly can lead to an exorbitant amount in fines.  On the other hand, smaller companies have less in volume but sometimes they can commit more substantive errors which can lead to fines on the higher-side of the range.  Both are bad results that your business should want to avoid. [Read more →]

August 3, 2016   No Comments

Employers Cannot Delay In Seeking Arbitration of Employment Disputes

Many employers today have implemented arbitration programs mandating that workplace-related disputes brought by or against their employees be decided by an arbitrator. Arbitration can provide for efficient resolution of disputes in a confidential setting.  It is also possible through the use of a carefully worded agreement to limit disputes to just one employee’s claims and prevent an employee from bringing claims on behalf of others in a class action. [Read more →]

July 25, 2016   No Comments

EEOC Confirms Fighting “Systemic Discrimination” Remains Top Priority

The U.S. Equal Employment Opportunity Commission (EEOC) defines systemic discrimination as “pattern or practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.” In 2005, the EEOC examined the state of its systemic discrimination program and issued numerous recommendations for changes in strategy, all of which resulted in the adoption of the Systemic Task Force (STF).   The STF has been a game changer for EEOC enforcement, setting priorities that have shaped the EEOC’s agenda and strategic vision over the last decade.  Among the STF’s primary recommendations was to make combating systemic discrimination a top priority. To do so, the STF advocated for the use of a national law firm model in litigating systemic cases by staffing systemic suits based on the needs of the suit, independent of the office where the case was developed. [Read more →]

July 19, 2016   No Comments

NLRB Continues Focus on Unionization of Temp Workers, Joint Employers

Yesterday, the National Labor Relations Board issued yet another decision that makes it easier to unionize workers deemed “joint employees” of a staffing agency and its business customer.  In its July 11, 2016 decision in a case called Miller & Anderson, Inc. and Tradesmen International and Sheet Metal Workers International Association, Local Union No. 19, AFL-CIO, the Board overturned a 2004 ruling known as Oakwood Care Center that required a business customer and a staffing agency to consent before a union election covering both jointly employed temporary workers and solely employed regular employees of the customer can occur.  Yesterday’s ruling reverses the consent requirement and takes us back to a prior ruling where consent was not required.  Now (as before 2004) a union election by regular and temporary workers together can occur simply where the Board finds that an employer’s workers and staffing agency employees working with it have an adequate “community of interest” to be part of one unit for unionization.

National_Labor_Relations_Board_logo_-_colorThe case involved a sheet metal workers union that sought to represent construction workers, including those employed both directly by Miller & Anderson Inc. and those supplied to provide temporary labor to it by Tradesman International.  Under the existing standard at the time the petition was filed, both the employer and the staffing agency needed to consent to the unit, and they did not.  The union challenged this requirement and the NLRB, in its continuing goal to include more “jointly employed” workers in unionization efforts, overturned its existing standard from Oakwood Care Center that required the employers’ consent.

The Board held that the only consideration is whether the direct employees and the jointly-employed workers who work just for that same employer share a “community of interests” under the traditional factors used in that analysis.  Consent of the employers is no longer required.  In announcing the ruling, the Board stated that where a unit such as this elects union representation, a “user employer will be required to bargain regarding all terms and conditions of employment for unit employees it solely employs. . . .  However, [a user employer] will only be obligated to bargain over the jointly-employed workers’ terms and conditions which it possesses the authority to control.”

This case follows on the heels of another recent Board case, known as Browning-Ferris, that opened up the standard for determining a staffing agency worker is a “joint employee” of the business customer, which makes it easier for unions to bring both staffing agencies and their user employers to the bargaining table.  This has been a clear trend of the Board under the Obama Administration.  A member of the Board who dissented in yesterday’s decision noted that precise goal and its real consequences.  Board Member Philip Miscimarra’s dissent said the decision “substantially enlarge[s]” the already expanded joint employer world created in the Browning-Ferris decision, and he believes that this most recent Board decision will only contribute to further confusion for parties about whether a proposed unit such as the one in this case will be certified and how bargaining will occur with such a unit if it elects union representation.  From his perspective, and that of most employers, this confusion benefits no one — not the employers, not the workers, and not even the unions who hope to represent such workers.

July 12, 2016   No Comments