NLRB independent contractor status update
The National Labor Relations Board has held that companies do not violate the National Labor Relations Act solely by misclassifying employees as independent contractors. Bottom line: the decision to classify an individual as an independent contractor rather than an employee will not, by itself, subject an employer to liability under the National Labor Relations Act.More
Develop a plan now to address Department of Labor's proposed overtime rule
The U.S. Department of Labor's rule to increase the salary threshold for the overtime exemption of executive, administrative and professional employees under the Fair Labor Standards Act has not yet been finalized.
The March 7 proposed rule was open for comments for a 60-day period. The Department of Labor received more than 116,000 public comments. The Department of Labor sent its final draft of the rule to the White House and the Office of Management and Budget on Aug. 12. The text of the final rule has not been made public.
When the final rule is published with an effective date, many expect unions and worker advocates to mount legal challenges to the rule. Even though the final rule may be challenged, it would be wise to be developing a plan now to address this huge budgetary issue.
This column focuses on the standard salary threshold, which will have the most dramatic impact on your company, and offers an action plan to address the standard salary threshold increase.MORE
NLRB General Counsel: Uber drivers are independent
The Division of Advice within the NLRB general counsel's office recently issued a memorandum describing why it believed Uber drivers should be considered independent contractors, not employees for purposes of the National Labor Relations Act. For that reason, charges filed by Uber drivers were dismissed.
The general counsel believed the Uber drivers to be independent contractors for two key reasons.MORE
Mississippi Employment Security Department backs off
Very recently, a daily newspaper in Tupelo, Miss., received a determination from the Mississippi Employment Security Department that its newspaper carriers are employees. The decision totally ignores the exclusion granted by the legislature in 2012. Needless to say, the newspaper vigorously protested, appealed this determination, emphasizing the provision. The State of Mississippi backed off completely, agreeing that the newspaper carriers are not eligible for benefits and the publishing company is not liable for unemployment taxes or payments made to newspaper carriers.MORE
U.S. Department of Labor proposes new overtime rule
This writer and many others predicted that the Department of Labor, under the leadership of Secretary Acosta would publish a new proposed rule in March 2019. The new proposed rule would increase the salary level threshold that must be met in order to be overtime exempt under the Federal Fair Labor Standards Act.
The new proposed rule, announced March 7, will increase that threshold from $23,660 per year (or $455 per week) to $35,308 per year (or $679 per week). This new threshold is far less than the threshold proposed by the Obama administration that was permanently enjoined nationwide by a federal court in Texas.MORE
New NLRB overrules Obama-era NLRB independent contractor precedent
On Jan. 25, the National Labor Relations Board, in a three-to-one decision, ruled that Super Shuttle drivers at the Dallas Fort Worth Airport were independent contractors and not employees.
This case is especially good news for the newspaper industry. The board in the new Super Shuttle case specifically referenced its decision in St. Joseph News-Press, a 2005 decision. In that decision, the NLRB found that home delivery carriers, single copy carriers and bundle haulers were all independent contractors.MORE
NLRB general counsel issues new advice memoranda
In December 2018, new NLRB General Counsel Peter Robb issued several new advice memoranda. Advice memoranda advise local NLRB offices about how to proceed with a particular unfair labor practice charge.
In one such memorandum, the employer's "Commitment to My Coworkers" policy was found to be lawful. The employer required all employees to read and sign a "Commitment to My Co-Workers" document.MORE
NLRB to revisit employee use of employer email
On Aug. 1, the National Labor Relations Board invited interested parties to file briefs on whether the board should adhere to, modify or overrule Purple Communications – a case (decided by the Obama Board) that held employees who had been given access to their employer's email system for work-related purposes have a presumptive right to use that system, on non-working time, for communications protected by Section 7 of the National Labor Relations Act (union organizing activity).MORE
Supreme Court rejects NLRB position on class action arbitration waivers
On May 21, the United States Supreme Court issued its long awaited decision in Epic Systems Corp v. Lewis. Justice Gorsuch delivered the opinion of the court. Rejecting the position of the National Labor Relations Board, the court ruled that employers and employees may lawfully agree that any disputes between them will be resolved through one-on-one arbitration. The court ruled that under the National Labor Relations Act, employees do not have the right to file class or collective actions, no matter what they agreed with their employer.MORE
Transparency is important in subscription campaigns
To drive revenue, publishing companies are increasingly producing "premium editions" for their newspapers.
Many legal issues must be considered when preparing newspaper subscription promotions. What you communicate about "premium editions" – the cost and how they impact the length of a newspaper subscription can be critical, legally. These legal issues were brought into sharp focus in a recent lawsuit.MORE
Emanuel confirmed; NLRB management majority restored
On the evening of Monday, Sept. 25, the U.S. Senate voted 49 to 47 to confirm William Emanuel to the National Labor Relations Board.MORE
Emanuel confirmed; NLRB management majority restored
On the evening of Monday, Sept. 25, the U.S. Senate voted 49 to 47 to confirm William Emanuel to the National Labor Relations Board.More
Health insurance premium increases invalidated under Open Meetings Act
An Alabama circuit judge has ruled that the state board governing education employees' health insurance violated the Open Meetings Act when it met in private before voting to jack up rates.
How far-reaching the ruling will be depends on whether it is appealed and upheld, said Dennis Bailey, longtime attorney for the Alabama Press Association.More
Texas court kills Obama DOL overtime rule
On Aug. 31, U.S. District Court Judge Amos Mazzant granted the motion for summary judgment of various business groups and state attorneys general in the overtime rule case.
Previously, on Nov. 22, 2016, Judge Mazzant issued a nationwide injunction, preventing the implementation of the rule, pending a decision on the merits of the case. The injunction case is before the U.S. Court of Appeals for the Fifth Circuit. It has been fully briefed and is currently scheduled for oral argument before the court on Oct. 3.
There is much speculation that oral argument may not occur, and the DOL may withdraw the appeal, given the Aug. 31 decision of Judge Mazzant granting the motion for summary judgment, which ruled that the final rule was unlawful.More