Photo: Bill Ward via Flickr (CC by 2.0)
Photo: Bill Ward via Flickr (CC by 2.0)

The Los Angeles office of the National Labor Relations Board (“NLRB”) issued a Complaint based on an unfair labor practices charge brought by the International Brotherhood of Teamsters (“Teamsters”) against Intermodal Bridge Transport, a California company in the logistics and transport business.  The original charge was filed in August of 2015 and amended twice since.

The Complaint, scheduled to be heard by an Administrative Law Judge in June, alleges, among other things, that the employer’s classification of its delivery drivers as independent contractors constitutes an unfair labor practice under Section 8(a)(1) of the National Labor Relations Act (the “Act”). The argument is based on the claim that misclassification inhibits individuals who would otherwise be employees from engaging in their Section 7 rights to concerted activity including unionizing.

Of particular interest is the fact that this action appears to be based on the advice provided in Memorandum GC 16-01 issued by the NLRB’s General Counsel on March 22, 2016.  There, the General Counsel directed Regional Directors and others in charge of enforcing offices to prioritize certain “cases that involve the General Counsel’s initiatives or policy concerns.”  Among those listed are “cases involving the question of whether the misclassification of employees as independent contractors violates Section 8(a)(1).”

For companies which utilize the services of independent contractors, this action presents one more potential front on which the misclassification war may be waged.  This is in addition to state and federal agencies which include, the United States Department of Labor, the Internal Revenue Service, state departments of labor and state unemployment offices.  As we have long stated, be wary of classifying workers as independent contractors; the tests are difficult to meet, and the penalties are severe.

Photo: US map - states.ca (public domain)
Photo: US map – states.ca (public domain)

Now that the first in the nation primary is over and the politicians have headed to other states, New Hampshire employers might think they don’t have to worry about politics creeping into the workplace.  This presidential election cycle, however, continues to be like no other; and even though Trump and Cruz and Clinton and Sanders have moved on, the rhetoric is only escalating at dinner tables and in bars. People are being arrested outside political rallies, and candidates are accusing one another of inciting violence.  Now may be a good time to review the do’s and don’ts of campaign conversation at work.

With what seems like a debate or a town hall meeting every other night and 24/7 news coverage it is likely that employees are engaged in a lot of “water cooler” conversation about the candidates either in person or through social media.  What can and should an employer do about regulating political discourse at work?

First, employees do not have so-called First Amendment rights to free speech in private workplaces.  The cry of “it’s a free country” and “you’re not the boss of me!” doesn’t quite ring true at work.  Employers may indeed restrict employee speech and activity during business hours and sometimes even when employees are off duty.

What follows is some general advice about what you can and can’t prohibit or require:

  • Employers may prohibit employees from using office equipment in support of political activity. That includes phones, computers and copiers.
  • It is also permissible to require employees to remove political buttons or take down posters. However, companies must be cautious that the material they are requesting be removed does not contain verbiage or logos related to unions as this speech is protected by the National Labor Relations Act. It is also wise to link such requests to a neutral policy or dress code which does not single out a particular type of speech or content.
  • It may also be appropriate to ask an employee who drives on company business to remove a political bumper sticker from a personal vehicle. Most businesses prefer to appear neutral regarding political matters so as not to alienate prospective customers so an employer may very well have a legitimate business interest in prohibiting political advertisements on vehicles being used for business.
  • Social media, as usual, presents unique challenges. If employers have a legitimate business interest in prohibiting political commentary by employees on social media, such a prohibition is usually acceptable. It would be easier for a business to justify telling an employee not to post political affiliations on LinkedIn, for example, which is often used for business.  It is more difficult to do so on purely personal social media such as a private Facebook page.  Again, any discussion about unions or conditions of work is protected, and must be allowed.
  • Companies may either allow or prohibit discussion of politics at work. Care must be taken, however, to make sure these conversations do not become conversations about protected classes or characteristics. In this election year it wouldn’t be hard to imagine campaign conversations including the mention of age, gender, religion or national origin.  Once that happens, a hostile work environment claim might follow.

A special word about non-profits:  501(c)(3) corporations must be very careful that political advocacy stays out of the workplace. The use of office equipment or advocacy by employees, for example, might compromise a non-profit’s tax exempt status.

As with most issues involving any potential controversy, an employer’s best defense is to have good policies: preferably policies which are neutral.  A dress code which prohibits logoed shirts or a non-solicitation policy which limits all forms of solicitation is much safer than one which targets political speech and solicitation only.  Likewise, the best way to enforce such policies is in a fair and evenhanded way.  In other words, don’t put Trump bumper stickers on all the company vans and tell those with the “Feel the Bern” bumper stickers to remove them from their personal vehicles.  Things might get even hotter than they are already.

Earlier this week, the New Hampshire Supreme Court issued an opinion holding that the New Hampshire Law Against Discrimination, RSA Chapter 354-A, can impose liability upon individual employees for aiding and abetting discrimination in the workplace, and for retaliation against another employee in the workplace of a qualifying employer.

The issue came before the New Hampshire Supreme Court in the form of a certified question from the United States District Court for the District of New Hampshire, in connection with a case pending in that court.  In the underlying case, a female employee brought suit against her employer for sexual harassment and retaliation under federal law (Title VII) and state law (RSA chapter 354-A).  The plaintiff also sued an individual employee under state law.  (Under current First Circuit precedent, there is no individual liability under the federal Title VII law.)  Because the New Hampshire Supreme Court has never specifically addressed the question of whether individuals can be held liable under Chapter 354-A, the Federal Court asked for clarification on the issue.

The New Hampshire Law Against Discrimination identifies certain acts which, when committed by an “employer,” constitute unlawful discriminatory practices.  The New Hampshire Supreme Court pointed out that the law also provides that “any act of aiding, abetting, inciting, compelling or coercing another to commit an unlawful discriminatory practice, or attempting to do so, or obstructing or preventing any person from complying with the [law] is itself an unlawful discriminatory practice.”  The Court noted that the law allows an aggrieved person to purse a claim against a “person, employer, labor organization, employment agency or public accommodation alleged to have committed the unlawful discriminatory practice.”  Since “person” is defined in the law as “one or more individuals, partnerships,  associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, trustees in bankruptcy, receivers, and the state and all political subdivisions, boards, and commissions thereof,” the Court concluded that individuals can be liable under the New Hampshire Law Against Discrimination.

The New Hampshire Law Against Discrimination only applies to employers with six or more employees.  The Court addressed the issue of whether an individual employee of an employer with fewer than six employees could be individually liable.  The Court held that one can only be found liable for aiding and abetting discriminatory conduct that is illegal under the New Hampshire Law Against Discrimination.  Therefore, if the conduct of a smaller employer is not actionable because the employer is exempt from the law due to its size, there can be no liability for aiding and abetting.

The Court came to a similar conclusion with regard to individual liability for retaliation under the New Hampshire Law Against Discrimination.  The Court held that the statute’s language makes clear that “as is relevant in the employment context … any ‘person’ may be held liable for retaliation without regard to whether that person is also an ‘employer.’”  As it did with the question of aiding and abetting, the Court found that “it would be illogical to hold individual employees liable for retaliation when they are employed by an employer that is exempt from liability” due to the size of the employer, and accordingly, the Court held that only individual employees of qualifying employers (i.e., employers with six or more employees) could be held liable for retaliation.

This week’s holding brings New Hampshire law in line with existing law in the neighboring Bay State on the issue of individual liability.  Under the Massachusetts anti-discrimination statute (G.L. Chapter 151B) “any person, whether an employer or an employee or not,” may be held liable for aiding, abetting, inciting, compelling or coercing the doing of any of the acts forbidden under the law.

The case is U.S. Equal Employment Opportunity Commission, et al. v. Fred Fuller Oil Company, et al., Case No. 2015-0258 (Feb. 23, 2016).  A copy of the opinion can be downloaded at the Court’s website.

Photo: dbking via Flickr (CC by 2.0)
Photo: dbking via Flickr (CC by 2.0)

As has been the case since 2009, the Equal Employment Opportunity Commission again reported that retaliation remained the most frequently filed discrimination charge in fiscal year 2015.  With the continued upward trend of these claims, the EEOC has issued new proposed guidance which broadly interprets provisions of this protective legislation. The last guidance it issued on retaliation was in 1998.

The purpose of the guidance is to inform the public about how the EEOC may guide its personnel in processing and investigating discrimination charges filed by employees and in considering what litigation it may bring for enforcement.  Essentially, it is used as a reference by EEOC staff in making decisions on claims.  The proposed guidance can be found at http://www.eeoc.gov/eeoc/newsroom/release/1-21-16a.cfm.

An employee bringing a retaliation claim must prove:  (1) the employee engaged in a statutorily-protected activity; (2) the employee suffered an adverse employment action; and (3) the protected activity and the adverse employment action were causally connected.  The new guidance takes an aggressive position on what is within the scope of protected activity in the workplace.  For example, the EEOC interprets “participation activity” to include an internal complaint made with an employer whereas courts generally require some connection to an actual administrative complaint or the litigation process.  This difference in scope from the EEOC can have significant consequences for employers.

While EEOC guidance is not controlling, it can be persuasive to a court.  As the US Supreme Court explained in Young v. United Parcel Service, Inc. issued in March 2015, the weight placed on guidance should be based upon “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors that give it power to persuade, if lacking power to control.”

Companies have 30 days to review and comment on the draft guidance, which ends on February 24, 2016.  Input may be submitted at www.regulations.gov in letter, email, or memoranda format. Alternatively, hard copies may be mailed to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.  The EEOC will review all comments and consider revisions to the draft guidance.

Photo: Day Donaldson via Flickr (CC by 2.0)
Photo: Day Donaldson via Flickr (CC by 2.0)

The Zika Virus, an illness transmitted primarily by mosquitoes and also, less frequently, through blood transfusions and sexual contact has certainly been in the news recently.  The U.S. Centers for Disease Control (CDC) has issued travel warnings alerting people to the risk of travel to more than two dozen countries in the Caribbean and South and Central America.   More than a dozen states have reported cases of the virus.  Due to the possibility of risk of birth defects if pregnant women are infected, even female members of the U.S. Olympic Team are expressing concern about travel to Brazil this summer.

Employers are asking what precautions they can and should take to protect employees, especially those who travel to foreign locations as part of their jobs.  The warnings are certainly of concern, especially to women of child-bearing age, but it is important that employers not panic and overreact.

As with any medical issue, great care must be taken to protect the privacy and rights of employees and prospective employees.  Laws of particular import include the following:

  • Americans with Disabilities Act (ADA): The ADA prohibits an employer from requiring medical examinations of current employees absent a reasonable belief that the employee has a medical condition or disability which poses a direct threat to the employee’s own safety or the safety of others in the workplace. Due to the lack of objective evidence that the virus can be spread through casual contact, there seems to be no basis to require medical examinations.
  • Occupational Health and Safety Act (OSHA): OSHA does permit employees to refuse to perform job tasks when they have a reasonable basis to believe that there is a threat of imminent death or serious injury.  The CDC has indicated that the spread of Zika can be eliminated with appropriate precautions, even in countries affected by the virus except when the employee is pregnant.  Employees may therefore not be reasonable in asking not to be sent to affected countries.  A pregnant employee’s request of this nature, however, may be deemed a reasonable accommodation.
  • Title VII of the Civil Rights Act of 1964 (Title VII): Although an employer may want to agree to a pregnant employee’s request to be excused from travel to affected nations, it would not be a good idea for an employer to ban pregnant employees, spouses of pregnant employees or individuals planning to become pregnant from overseas travel.  The employer’s best course of action is to educate employees about the risks and then let them make their own healthcare decisions.

The best course of action for employers, especially those who have employees traveling to the Caribbean or South or Central America, is to provide education about risks and precautions to take and to refer employees to the CDC website for information. Such employers should also reinforce sick leave and FMLA policies and make sure supervisors are knowledgeable about illnesses and require sick employees to take time off from work. Finally, employers should consider allowing employees, especially those expecting children or planning to get pregnant, to opt-out of travel, at least until  more is known about the virus, its genesis and its long term affects.

Photo: Pictures of Money via Flickr (CC by 2.0)
Photo: Pictures of Money via Flickr (CC by 2.0)

Seven years after the Lilly Ledbetter Fair Pay Act was signed into law, the Obama Administration has announced additional steps to address the gender pay gap in this country.  Specifically, the Equal Employment Opportunity Commission (EEOC) has proposed changes to the Employer Information Report (EEO-1) that would require businesses with more than 100 employees to submit detailed salary and pay information for each employee broken down by gender, race and ethnicity.  The White House says the goal of this proposal is to “focus public enforcement of our equal pay laws and provide better insight into discriminatory pay practices across industries and occupations.”  Both the EEOC and the Office of Federal Contract Compliance Programs would have access to the pay data for enforcement purposes.

The proposed Revision to the EEO-1 was published in the Federal Register on February 1, 2016.  Interested parties have until April 1, 2016 to submit comments.  While the rulemaking process is expected to be complete by September 2016, affected employers will not need to submit the additional salary and pay information until 2017 if the Revision is adopted as is.

To prepare for the new reporting requirements, employers with more than 100 employees should begin evaluating their pay practices now to identify any areas of pay disparity that should be addressed before the 2017 reporting period begins.  Although this is information that employers should routinely examine and keep records of, even if just to be aware of potential inequities in salary structures and to be able to defend themselves against pay disparity claims, the revised reporting requirement will add a significant additional burden on companies required to complete the EEO-1.

The proposed Revision to the EEO-1 can be found here.

Photo: Seattle Municipal Archives via Flickr (CC by 2.0)
Photo: Seattle Municipal Archives via Flickr (CC by 2.0)

SB 417, currently pending in the New Hampshire Senate, seeks to amend RSA 329 by adding a provision which would make it unlawful to prevent a physician from leaving one practice or hospital and setting up shop just a few miles away in competition with his or her former employer.  The bill is concise and states as follows:

Any contract or agreement which creates or establishes the terms of a partnership, employment, or any form of professional relationship with a physician licensed by the board [of medicine] to practice in this state, which includes any restriction to the right of such physician to also practice medicine in any geographic area for any period of time after the termination of such  partnership, employment, or  professional relationship shall be void and unenforceable with respect to said restriction; provided, however, that nothing herein shall render void or unenforceable the remaining provision of such contract or agreement.  The requirements of this section shall apply to new contracts or renewals of contracts entered into on or after the effective date of this section.

The Bill was initially introduced and referred to the Senate Commerce Committee but has since been transferred to the Health and Human Services Committee for follow up.  There are no scheduled hearings.

A legislative change of this nature will be of interest to hospitals, physician practices and individual physicians, each likely having significantly different feelings about whether the amendment is a good or bad thing.  Many would argue that such provisions have generally been deemed unenforceable, at least with respect to new patients, since the 1997 case of Concord Orthopaedics v. Forbes was decided by the New Hampshire Supreme Court.  However, passage of this legislation would put any doubt to rest.

Those who have an interest in this issue should keep a watchful eye on this bill and consider contacting their own Senators or members of the committee to express their thoughts.  Following pending legislation can be accomplished by clicking here and inserting the bill number where indicated.

It is no surprise that businesses often struggle with categorizing workers as employees versus independent contractors.  The U.S. Department of Labor’s (“USDOL”) latest  guidance highlights a similar challenge businesses face, but may overlook, especially those using staffing agencies  or hire temporary workers to supplement their workforces: the issue of joint employment.  On January 20, 2016, the Wage and Hour Division of the USDOL issued new guidance on joint employment making it clear that the Department takes this issue seriously and will be working to ensure that all responsible employers are aware of their obligations.  For the full text of the Department’s Interpretation see Administrator’s Interpretation No. 2016-1 available at http://www.dol.gov/whd/flsa/Joint_Employment_AI.htm.

The USDOL identified common scenarios in which two or more employers jointly employ an employee and are thus jointly liable for compliance with the Fair Labor Standards Act (“FLSA”) and the Migrant and Seasonal Agricultural Worker Protection Act (“MSPA”).  Joint employer issues often arise where an employee works for two employers who are associated or related in some way with respect to the employee or where the employer is an intermediary or otherwise provides labor to another employer.  The Interpretation pulls together all the relevant statutory provisions, regulations and case law to provide comprehensive guidance on joint employment under the FLSA and MSPA so that employers can properly analyze a potential joint employment scenario.

So when does a joint employment relationship exist?  Unlike the common law control test which focuses on the amount of control exercised by the employer over the worker to determine if the worker is an employee, under the FLSA and MSPA a much broader “suffer or permit” test is used. Under this broader definition, a worker can be an employee even where the employer exercises little or no control over the worker.  Thus, the test for joint employment under the FLSA and MSPA is different, and more encompassing, than the test under other labor statutes.

There are two types of joint employment: horizontal and vertical.  The structure and nature of the relationship at issue determines whether a particular case is analyzed under horizontal or vertical joint employment (or both).  Horizontal joint employment may exist when two or more employers each separately employ an employee and are sufficiently associated with or related to each other with respect to the employee.  The focus is on the relationship between the employers.  Common examples include separate restaurants that share economic ties and have the same managers and waitresses working in both restaurants.  Another example is where a nurse works at one nursing home part-time and another related nursing home part-time during the same week.  If the nursing homes are joint employers, the nurses’ hours for the week are added together as a single employment relationship.

The following facts may be relevant when analyzing the degree of association between potential horizontal joint employers:

  • Who owns the potential joint employers (i.e., does one employer own part or all of the other or do they have any common owners)?
  • Do the potential joint employers have any overlapping officers, directors, executives, or managers?
  • Do the potential joint employers share control over operations (e.g., hiring, firing, payroll, advertising, overhead costs)?
  • Are the potential joint employers’ operations inter-mingled (for example, is there one administrative operation for both employers, or does the same person schedule and pay the employees regardless of which employer they work for)?
  • Does one potential joint employer supervise the work of the other?
  • Do the potential joint employers share supervisory authority for the employee?
  • Do the potential joint employers treat the employees as a pool of employees available to both of them?
  • Do the potential joint employers share clients or customers?
  • Are there any agreements between the potential joint employers?

On the other hand, “vertical” joint employment may exist where an employee of one employer (referred to as an “intermediary employer”) is also economically dependent on another employer (the “potential joint employer”).  The potential joint employer typically has contracted with the intermediary employer to provide it with labor and/or perform for it some employer functions, like hiring and payroll.  There is often an admitted employment relationship between the employee and the intermediary employer, but the question becomes whether the employee’s work is also for the benefit of the potential joint employer.  Vertical joint employment can arise where a construction worker who works for a subcontractor is also employed by the general contractor, where a farmworker who works for a farm labor contractor is also employed by the grower, or where nurses are placed at a hospital by staffing agencies.  Unlike horizontal joint employment where the focus is between the employers, vertical joint employment focuses on the economic realities of the relationship between the worker and potential joint employer (i.e. vertical joint employment focuses on the economic dependence  of the worker on the general contractor, rather than the relationship between the subcontractor and the general contractor).

The MSPA regulation describes seven economic realities factors in the context of a farm labor contractor acting as an intermediary employer for a grower and is useful to analyze other vertical joint employment scenarios.  It is important to note that the economic realities factors are applied in varying ways depending on the court, but the ultimate focuses is always on determining economic dependence.  The seven MSPA factors are:

  • The extent that the work performed by the employee is controlled or supervised by the potential joint employer beyond a reasonable degree of contract performance oversight;
  • The extent that the potential joint employer has the power to hire or fire the employee, modify employment conditions or determine the rate or method of pay;
  • The permanency and duration of the relationship by the employee with the potential joint employer;
  • The extent that the employee’s work for the potential joint employer is repetitive and rote, is relatively unskilled, and/or requires little or no training;
  • Whether the employee’s work is an integral part of the potential joint employer’s business;
  • Whether the employee’s performance of the work is performed on premises owned or controlled by the potential joint employer;
  • The extent that the potential joint employer performs administrative functions for the employee commonly performed by employers.

In sum, joint employment has become more common with today’s increasing trend toward businesses sharing employees, or using third party management companies, independent contractors, staffing agencies or labor providers.  In view of these evolving employment scenarios which  depart from the traditional employment  situation, the USDOL is scrutinizing these relationships more carefully.  The Interpretation makes clear that joint employment will be defined expansively and thus the scope of employment relationships subject to the protections of the FLSA and MSPA is broad.  Why does this matter?  Whether an employee has one or more employer is important in determining both the employee’s rights and the employer’s obligations.  In cases where joint employment is established, the employee’s work for the joint employers during the workweek is considered as one employment and the joint employers are jointly and severally liable for compliance, including paying overtime compensation for all hours worked over 40 during the workweek.  Therefore, it is in a business’ best interest to become familiar with this Guidance.

Thumbnail with Play buttonThe H-1B visa is one of the most popular work visas in the United States, but is becoming increasingly difficult to obtain due to a shortage.  Applications for H-1B visas are accepted on April 1 of each year, so now is the time for businesses to start the planning process.

I recently did a video on ‘What You Should Know About the H-1B Visa Application Process.’  To view the video, click here.