Tag Archives: labor and employment

The NLRB Shifts its Strategy in its Attempts to Change the Joint-Employer Standard

After a failed attempt to change the joint-employer standard through legal decision arising out of a pending case before the NLRB, on September 14, 2018, the National Labor Relations Board (the “Board”) published a Notice of Proposed Rulemaking in the Federal Register regarding its joint-employer standard. The proposed rule would overturn the standard set by the Board in Browning-Ferris, 362 NLRB No. 186 (2015) to determine if an employer is a joint employer. Under the Browning-Ferris standard, the inquiry turns on whether the alleged joint employer had the potential to control aspects of the workplace, either directly or indirectly, regardless of whether the employer actually exercised that authority.

The proposed rule would revert to the pre-Browning-Ferris standard for determining whether an employer will be considered a joint employer of a separate employer’s employees. Under this proposed rule, an employer may be considered a joint-employer of another employer’s employees only if it possesses AND exercises substantial, direct, and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. This would effectively reverse the Browning-Ferris standard and render indirect influence and contractual reservations of authority insufficient to establish a joint-employer relationship.

The 60-day period for public comments on this proposed rule began on September 14, 2018, and continues through November 13. After the Board receives and reviews the public comments and replies, it will issue a final rule regarding the joint employer standard. If issued without substantial changes, this rule would be great news for employers as this stricter standard is clearer, provides more consistency, and reduces the likelihood of an employer inadvertently becoming a joint employer.

Ryan P. Portugal
rportugal@williamsparker.com
941-329-6626

Planning for the Next Hurricane: Employee Pay During and After a Storm

With the onset of the 2018 hurricane season and the effects of Hurricane Irma still being felt by many, employers have a number of concerns. These concerns range from preparing facilities to determining whether a business will stay open. At some point, after decisions have been made about whether a business will stay open and if goods or people need to be moved out of harm’s way, the questions relating to employee pay may arise.

One question that is frequently asked is “Should I pay exempt employees who miss work due to bad weather conditions?” When it comes to deductions from exempt employees’ salaries, it is easy to get into trouble. The general rule is that an exempt employee is entitled to receive his or her entire salary for any workweek he or she performed work. This means, if the work site closes for a partial week due to bad weather conditions (such as a hurricane) and the exempt employee has worked during that workweek, the employee is entitled to his or her full salary. However, if the employer has a leave benefit, such as PTO, and the employee has leave remaining, the employer can require the employee to use paid time off for this time away from work. If the employee does not have any remaining leave benefit, he or she must be paid.

If the work site remains open during inclement weather and an employee is absent (even if due to transportation issues), the employee can be required to use paid time off. If the employee does not have any paid time off remaining, the employer may deduct a full-day’s absence from the employee’s salary. For a more detailed explanation visit dol.gov.

Other issues that arise relate to what constitutes compensable time for non-exempt employees. The FLSA only requires that non-exempt employees be paid for the hours they actually work. However, those non-exempt employees on fixed salaries for fluctuating workweek(s) must be paid their full weekly salary in any week for which work was performed. Further, those businesses, such as hospitals and nursing homes that remain open during a storm and require employees to remain onsite during the storm may have to pay employees required to be onsite during a storm for all time they are at the employer’s place of business, as they may be considered to be “on call.”

It is important for businesses to start planning in advance for the next hurricane. Such plans should include evaluating which employees may be required to continue working during a storm and what portion of their time during a storm is considered compensable.

Heathcare employers also have new ACHA rules to comply with relating to storm preparation (not specifically related to employee compensation). For further information on these regulations see my colleague Steven Brownlee’s recent article, “Senior Living Providers: Are you ready for the Beryl, Chris, and Debby?

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Seminar: What’s a Business to Do in the Age of #MeToo?

In light of all of the attention that is being focused on issues relating to harassment and the #MeToo movement, it is now more important than ever for businesses to develop a better understanding of what constitutes harassment in the workplace.

Join us Wednesday, April 11, at the Lakewood Ranch Business Alliance’s upcoming seminar featuring Williams Parker board certified labor and employment attorney Jennifer Fowler-Hermes. Jennifer will discuss types of harassment and provide guidance on how employers can prevent, recognize, and respond to harassment.

WHEN:
Wednesday, April 11, 2018
7:30-8:00 a.m. Networking & Breakfast
8:00-9:00 a.m. Presentation

WHERE:
Keiser University
6151 Lake Osprey Drive
Sarasota, FL 34240

COST:
$10 Members, $20 Non-members

Register Online

MORE ON #METOO:
Catch Williams Parker labor and employment attorney Gail Farb discussing the #MeToo movement on a recent ABC7 news TV segment and roundtable discussion.

Intro Segment (Gail first appears at 2:31):

Roundtable Discussion (Gail first appears at 2:55).