Misclassification of Employees As Independent Contractors Does Not Violate NLRA, Says NLRB

By Kathleen J. Jennings (kjj@wimlaw.com)

The current National Labor Relations Board (NLRB) is the gift that keeps on giving to employers. Today, the NLRB issued a decision in which it held that an employer’s misclassification of its employees as independent contractors does not violate the National Labor Relations Act (NLRA). Velox Express, Inc., 368 NLRB No. 61 (8/29/19). This case drew the attention of numerous unions and employer associations, many of which submitted amicus briefs.

How is misclassification of employees an issue in labor law? The classification of employees as “independent contractors” effectively removes them from the jurisdiction of the NLRA and therefore, takes away their rights under Section 7. In the event of a union organizing campaign and election, the “independent contractors” would not be part of any proposed bargaining unit nor could they vote in the election. Employers are free to discipline or dismiss independent contractors for engaging in concerted activity for mutual aid or protection (such things as bringing group complaints about employee treatment to the attention of management or talking to other employees about bringing in a union). The Obama NLRB took the position that such misclassification did violate the NLRA, but the Republican majority of the current NLRB soundly rejected that interpretation.

Keep in mind that improper classification of employees as independent contractors can still have consequences—most notably with the federal Department of Labor.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Get Off My Lawn: The NLRB Sets New Standard for Access to Employer Property By Off-duty Employees of Contractors

By Kathleen J. Jennings (kjj@wimlaw.com)

Last week, the National Labor Relations Board handed employers a victory in a case involving access to property. Bexar County Performing Arts Foundation, N.L.R.B., 16-CA-193636 (8/23/19). Specifically, the Board addressed whether and when a property owner must grant access to the off-duty employees of an onsite contractor to engage in Section 7 activity. Overruling precedent set during the Obama era, the Board held that contractor employees are not generally entitled to the same Section 7 access rights as the property owner’s own employees. Therefore, a property owner may exclude from its property off-duty contractor employees seeking access to the property to engage in Section 7 activity unless (i) those employees work both regularly and exclusively on the property and (ii) the property owner fails to show that they have one or more reasonable nontrespassory alternative means to communicate their message. Further, the Board stated that it considers contractor employees to work “regularly” on the owner’s property only if the contractor regularly conducts business or performs services there. In addition, the Board will consider contractor employees to work “exclusively” on the owner’s property if they perform all of their work for that contractor on the property, even if they also work a second job elsewhere for another employer.

This case involved the Tobin Center, a performing arts center, which houses three principal resident companies: the Symphony, Ballet San Antonio, and Opera San Antonio. When the Ballet San Antonio chose to use recorded music for its performances of Sleeping Beauty, the Symphony employees were not pleased because that meant lost work for them. The Union representing the Symphony employees decided to hand out leaflets on Tobin Center property before the four weekend performances of Sleeping Beauty. In response, the Tobin Center barred the Symphony employees and their sympathizers from leafletting on its property, and the Union filed a charge with the NLRB.

In its decision, the Board noted that the Symphony employees did not work on the Tobin Center’s property exclusively; they performed at other venues as well. Furthermore, the Symphony employees did not “regularly” work on the Tobin Center’s property because the Symphony itself did not regularly conduct business or perform services there. Finally, they had other alternative nontrespassory channels of communication to reach the general public: a public sidewalk across the street from the Tobin Center’s property. Accordingly, the Tobin Center lawfully denied the Symphony employees access to its property for their leafletting activities.

The current Republican majority Board has shown that it is willing to give employers greater control over their property in the face of union activity. This ruling follows the Board’s decision in June in which it overruled 38 year-old precedent and held that an employer does not have a duty to allow the use of its facility by nonemployees for promotional or organizational activity. UPMC, N.L.R.B., 368 N.L.R.B. No. 2 (6/14/19). The Board has also announced that it will use its rulemaking power to clarify standards for union activity on employer property.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

National Labor Relations Board Approves the Use of Mandatory Arbitration Agreements as Tool For Employers to Fight Collective Actions

By Kathleen Jennings (kjj@wimlaw.com)

A decision issued this week by the National Labor Relations Board gives employers greater clarity on the issue of mandatory arbitration agreements. (Cordua Restaurants, N.L.R.B., 16-CA-160901, August 14, 2019). This decision is an important follow up to the U.S. Supreme Court’s landmark decision in Epic Systems Corp. v. Lewis, 584 U.S. __, 138 S.Ct. 1612 (2018). In Epic Systems, the Supreme Court held that agreements containing class-and collective-action waivers and stipulating that employment disputes are to be resolved by individualized arbitration do not violate the National Labor Relations Act and must be enforced as written pursuant to the Federal Arbitration Act.

Specifically, the Cordua Restaurants decision answered two questions left open in Epic Systems: (1) whether the National Labor Relations Act (NLRA) prohibits employers from promulgating mandatory arbitration agreements in response to employees opting in to a collective action; and (2) whether the NLRA prohibits employers from threatening to discharge an employee who refuses to sign a mandatory arbitration agreement. The Board’s answer to both questions was NO. This is a victory for employers who desire to use mandatory arbitration agreements.

In a small victory for employees, however, the Board reaffirmed longstanding precedent establishing that Section 8(a)(1) of the NLRA prohibits employers from disciplining or discharging employees for engaging in concerted legal activity, which includes filing a class or collective action with fellow employees over wages, hours, or other terms and conditions of employment.

What this means for employers:

  • Employers are allowed to condition employment on signing mandatory arbitration contracts.
  • Employers can warn workers that they will be fired if they fail or refuse to sign mandatory arbitration agreements.
  • Employers can require employees to sign mandatory arbitration pacts in response to workers opting into FLSA collective actions or class actions brought under state wage-and-hour laws. In those agreements, employees must agree that they will not opt into an existing collective action. This is a powerful weapon for an employer to wield in response to the filing of a collective action.

According to a 2018 study by the Economic Policy Institute, more than half of nonunion, private sector employers have mandatory arbitration procedures. However, these agreements are not “one size fits all.” It is advisable to contact qualified counsel to craft an agreement that meets the needs of your particular business and workforce.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

NEW HORIZONS IN FMLA LEAVE: PARENT-TEACHER CONFERENCES?

By Elizabeth K. Dorminey (ekd@wimlaw.com)

Is a parent entitled to use FMLA leave to attend a special education parent-teacher conference? A recent Opinion Letter from the U.S. Department of Labor says “yes.”

In a letter published August 8, 2019 (FMLA2019-2-A), Wage and Hour Division Administrator Cheryl M. Stanton responded to a formal request for an opinion on this question. The writer explained that he was the father of two children with FMLA-qualifying serious health conditions. His wife’s employer had approved her taking FMLA leave intermittently to take the children to medical appointments but declined her request to take intermittent FMLA leave to attend Committee on Special Education (CSE) meetings to discuss the children’s Individualized Education Programs (IEP) at their school. The children receive pediatrician-prescribed occupational, speech, and physical therapy provided by their school district, and meetings are held four times a year to review their educational and medical needs, well-being, and progress. The writer wanted to know if his wife may insist on intermittent FMLA leave to attend these meetings.

Based on the facts provided in the letter, the Administrator concluded that the wife’s need to attend CSE/IEP meetings was a qualifying reason for taking intermittent FMLA leave. The Administrator found that the meetings were necessary to “care for a family member … with a serious health condition,” as defined in 29 C.F.R. § 825.100(a); and that “to care for” includes “to make arrangements for changes in care.” 29 C.F.R. § 825.124(b). That language usually is applied to making medical decisions on behalf of a hospitalized family member or arrangements to find suitable childcare for a child with a disability, even if the decisions do not involve a facility that provides medical treatment. In a previous opinion letter, WHD had found that an employee was entitled to take FMLA leave to attend meetings related to a parent’s health condition. WHD Opinion Letter FMLA-94, 1998 WL 1147751, at *1 (Feb. 27, 1998).

Even though the CSE/IEP meetings are focused on education, not health care, the Administrator found that attending the meetings was essential to the wife’s ability to provide appropriate physical or psychological care to the children and that her participation would help her make medical decisions concerning the children’s care. Bottom line: the wife is entitled to claim intermittent FMLA leave to attend the meetings.

Point/Counterpoint

    This is an interesting and controversial letter and provoked considerable debate among the firm’s attorneys. Intermittent leave, often taken in small increments, can be an administrative challenge for employers who must track leave use and may need to reschedule other workers to cover for an absent employee. The FMLA’s focus has been on dealing with illness and disability, the exception being maternity leave or leave for adoption or foster placement, but this letter suggests that the “medical” aspect needs only to be incidental: the focus of these meetings was on the children’s education, not health care. Will this throw wide open the gates for employees to claim leave for a broader scope of activities, on the argument that they are tangentially related to health and well-being? When does an underlying “educational” issue becomes a health issue? Taking a child to the doctor for dyslexia testing or for counseling is covered by the FMLA. Shouldn’t meetings with teachers who will be implementing the doctors’ orders be covered as well?

Mandatory unpaid leave to attend parent-teacher conferences has been adopted in several States. Nevada requires an employer to grant unpaid leave to a parent, guardian, or custodian of a child who is enrolled in a public school for up to 4 hours each school year to attend parent-teacher conferences, school-related activities during regular school hours, to volunteer at school activities during regular school hours, and to attend school-sponsored events. California allows up to 40 hours of unpaid leave annually; the District of Columbia allows 24 hours each year. Illinois allows up to 8 hours each school year, in 4-hour increments, Massachusetts 12. Minnesota and Louisiana each allow 16; North Carolina matches Nevada at 4. Rhode Island offers 10. Vermont matches D.C. at 24.

CONCLUSION

While this is a somewhat unusual situation, it reminds us that employers need to be proactive in learning the facts surrounding an employee’s request for FMLA leave. The notice and certification requirements were meant to foster a dialogue between employer and employee to enable the employer to determine if a leave request meets the requirements under the Act. Employers should use those tools to carefully analyze FMLA-related leave requests. When an employer is in doubt as to whether a request for FMLA leave should be granted, it is best to contact knowledgeable legal counsel for advice.

Elizabeth Dorminey is a principal in the Athens office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. where she is a member of the Wage and Hour practice team. She can be contacted at ekd@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

The Importance of Verifying Employment Eligibility In a Legal Manner

By Kathleen J. Jennings (kjj@wimlaw.com)

There is a right way and a wrong way to verify employment eligibility of new employees. A McDonald’s franchisee will pay in excess of $91,000 in a settlement with the Department of Justice (DOJ) because it used the wrong way. Specifically, the company routinely required non-citizens to produce documents issued by the Homeland Security Department during the onboarding process, even after they produced valid, legally acceptable documents to prove they were authorized to work. According to the DOJ, the company’s practice came to the DOJ’s attention after an employee complained that she was required to produce a green card despite having shown her employer a valid driver’s license and unrestricted Social Security card.

This is the third immigration related settlement reached by DOJ in the past week, so it would be safe to say that DOJ is aggressively enforcing anti-discrimination laws related to immigration. At the same time, ICE is increasing its own workplace enforcement efforts to remove persons who are not eligible to work in the U.S. What this means for employers: it is extremely important to accurately and legally verify employment eligibility for all employees.

What is the right way to verify employment eligibility? The employer and employee must properly complete USCIS Form I-9. To establish both identity and employment authorization, a person must present to their employer a document or combination of documents from List A, which shows both identity and employment authorization; or one document from List B, which shows identity and one document from List C, which shows employment authorization.

LIST A: Documents That Establish Both Identity and Employment Authorization

All documents must be unexpired.

  1. U.S. Passport or U.S. Passport Card
  2. Permanent Resident Card or Alien Registration Receipt Card (Form I-551)
  3. Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa (MRIV)
  4. Employment Authorization Document (EAD) that contains a photograph (Form I-766). Form I-766 expired on its face combined with Form I-797 based on an automatic EAD extension in certain circumstances qualifies as unexpired Form I-766;
  5. For a nonimmigrant alien authorized to work for a specific employer incident to status, a foreign passport with Form I-94 or Form I-94A bearing the same name as the passport and an endorsement of the alien’s nonimmigrant status, as long as the period of endorsement has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the form
  6. Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI

    LIST B: Documents That Establish Identity

    All documents must be unexpired.

    For individuals 18 years of age or older:

  7. Driver’s license or ID card issued by a state or outlying possession of the United States, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address
  8. ID card issued by federal, state, or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address
  9. School ID card with a photograph
  10. Voter’s registration card
  11. U.S. military card or draft record
  12. Military dependent’s ID card
  13. U.S. Coast Guard Merchant Mariner Card
  14. Native American tribal document
  15. Driver’s license issued by a Canadian government authority

    For persons under age 18 who are unable to present a document listed above:

  16. School record or report card
  17. Clinic, doctor, or hospital record
  18. Day-care or nursery

     LIST C: Documents That Establish Employment Authorization

    All documents must be unexpired

  • A Social Security Account Number card unless the card includes one of the following restrictions:
    • NOT VALID FOR EMPLOYMENT
    • VALID FOR WORK ONLY WITH INS AUTHORIZATION
    • VALID FOR WORK ONLY WITH DHS AUTHORIZATION
  • Certification of report of birth issued by the U.S. Department of State (Forms DS-1350, FS-545, FS-240)
  • Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying territory of the United States bearing an official seal
  • Native American tribal document
  • U.S. Citizen Identification Card (Form I-197)
  • Identification Card for Use of Resident Citizen in the United States (Form I-179)
  • Employment authorization document issued by the Department of Homeland Security.

    Are you completing Form I-9 correctly? Wimberly Lawson can audit your I-9 Forms and related documents to verify your compliance with federal law.

    Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

    ©2019 Wimberly Lawson

    The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

ICE, ICE, Baby

by Kathleen J. Jennings (kjj@wimlaw.com)

With the threat of  U.S. Customs and Immigration Enforcement (ICE) raids in the very near future, we are repeating advice from an older blog post so that companies know what to do if ICE shows up at the door.

What is a company to do if ICE agents show up at a facility?

The first question that you need to ask is this: Do you have a warrant?

If the answer to that question is yes, then the company’s options are limited.

Review the warrant and contact counsel immediately. ICE is a federal law enforcement agency, and a company, like a person, needs to ensure that its 4th amendment (against unreasonable search and seizure) and 5th amendment (against self-incrimination) rights are protected.

Does the warrant seek documents or information? It is absolutely the job of the company’s counsel to respond or possibly even move to quash the warrant.
If there is no warrant, then the company has more options in responding.

Without a warrant, law enforcement cannot enter a company’s private property without the permission of an agent of the company. The company should designate in advance the person or persons who are authorized to interact with members of law enforcement on behalf of the company.

If there is no warrant or court order, the company does not have to provide any documents or information to ICE. The company may voluntarily provide information, such as Motel 6 did in Arizona, when it turned over guest logs to ICE.

If the company has a collective bargaining agreement, does the collective bargaining agreement say anything about the level of cooperation the company can provide to ICE? Some unions are seeking inclusion of provisions in collective bargaining agreements that would limit the employer’s ability to cooperate with ICE. Some model provisions restrict an employer from letting ICE agents into the workplace unless they possess a valid judicial warrant. These model provisions also ban the auditing or sharing of workers’ I-9 employment eligibility verification forms or checking status using the voluntary E-Verify program, except where required by law, from. As enforcement efforts become more aggressive, look for more unions to propose this type of contract language.
[Some unions, such as Unite Here!, which represents many hospitality workers, are also providing training to workers in the handling of encounters with ICE.]

What are the possible future consequences? Will a lack of cooperation result in more federal law enforcement pressure on the company? Or will cooperating with ICE result the loss of a substantial number of workers or unfavorable publicity?

Pro Tip: However a company chooses to respond to a visit from ICE, it should have a written plan of action in place well before anyone from ICE appears at the door. Review that plan with counsel to ensure that the company’s rights are protected.

Kathleen Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She has also handled criminal matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson
The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Rethinking the Use of Pre-Employment Drug Tests to Weed Out Applicants

By Kathleen J. Jennings (kjj@wimlaw.com)

Last week, Illinois became the 11th state to pass legislation to legalize recreational marijuana. New York may be the next state to pass similar legislation. In addition, 33 states (including Georgia) and the District of Columbia have passed laws legalizing the use of medical marijuana. With all the legal weed out there, should employers continue to drug test applicants (and employees) for the presence of THC (a marijuana metabolite)?

First and foremost—be aware that these state laws have no impact on federally mandated testing of applicants and employees, most notably, drug testing required by the Department of Transportation (DOT). To that end, the DOT has issued the “Recreational Marijuana” Notice: “We want to make it perfectly clear that the state initiatives will have no bearing on the Department of Transportation’s regulated drug testing program. The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for any reason.” As far as federal law is concerned, marijuana use is illegal.

For those applicants and employees that are not subject to federally mandated drug testing, some employers are discontinuing drug testing for the presence of THC. Some of those employers are doing so in order to avoid violating state laws: 11 states (Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, Pennsylvania and Rhode Island) have statutes that explicitly prohibit employment discrimination against medical marijuana users. New York City passed an ordinance banning employers from conducting preemployment tests for medical marijuana. Nevada has recently passed legislation (awaiting the governor’s signature) that would prohibit an employer from rejecting a job candidate for testing positive for marijuana. We are also seeing court cases where the courts have found in favor of protecting medical marijuana users against discrimination.

Furthermore, some employers have stopped screening applicants for THC because they find that they are losing too many otherwise acceptable job candidates.

One of the biggest challenges for employers is determining if an employee is under the influence of marijuana while working. THC can stay in a person’s system for as long as 3 weeks. Current drug tests cannot accurately pinpoint when an individual actually ingested marijuana. Obviously, employers do not want their employees to be stoned while working, especially if they are operating equipment, driving, or providing health care services. If an employer has a suspicion that an employee is under the influence of marijuana while working, it is important to carefully document the reasons supporting that suspicion, such as odor and employee appearance and behavior, before sending the employee home or taking further action.

This is a very dynamic area of the law, and it is important to stay up to date on the laws of the states where your company does business.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2019 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.