On January 25, 2019, the National Labor Relations Board (“NLRB”) issued an important decision in SuperShuttle DFW, Inc. and Amalgamated Transit Union Local 1338, 367 NLRB No. 75, Case 16-RC-010963 (Jan. 25, 2019), holding 3-1 that franchisee drivers who operated shared ride vans were independent contractors, not employees, under the National Labor Relations Act (“NLRA”). In SuperShuttle, the Board found that the franchisee drivers were required to purchase or lease a van and enter into a franchise agreement with strong indemnification provisions in favor of the operator. The drivers also had total control over their work schedules, determining how much or how little to work, and had discretion on what trips to accept. According to the Board, these factors demonstrated a significant opportunity for economic gain, as well as a significant risk of loss. Read more ›
On January 11, 2019, in Pittsburgh Logistics Systems, Inc. v. BeeMac Trucking, LLC and BeeMac Logistics, LLC, a panel of nine judges sitting en banc affirmed a ruling holding that a no-hire agreement between two companies was unenforceable as a matter of law. In this case of first impression, the fact that there was a valid non-solicitation agreement in place that protected the company’s interests and that the no-hire provision was an overly restrictive restraint on trade informed the trial court’s decision and provided support for the affirmation of that decision. Read more ›
A new year always brings new headaches for HR professionals. So far, 2019 has been off to a running start with a government shutdown, the early start of the next presidential campaign and talks of major immigration reform. Here is the list of issues that should be on the radar for every company’s HR department this year.
- Overtime Regulations: The Obama era changes to the overtime regulations were stopped, but the new and improved version under the Trump administration is expected to arrive in early 2019. Like before, the regulations will likely have an increase in the salary threshold for exempt employees.
- ADA Accommodations: The world of reasonable accommodation has never been more complex. Be prepared for requests for emotional support animals, flexible schedules, and remote work options.
- Medical Marijuana: The legislative trend towards legalizing marijuana is picking up steam. If you are not in a state with legalized marijuana, you are probably near one. Employers face new challenges in drug testing and addressing requests for accommodation from medical users.
- #MeToo Fallout: The #MeToo trend and the Kavanaugh hearings are over– but not gone. The effects are here to stay, and employers will be dealing with increased sexual harassment claims for years to come.
- Pay Equity: One of the tangible impacts of the #MeToo movement was an increased focus on gender pay equity. Look for more states and cities (and possible the new Congress) to enact legislation in this area, including already popular bans on seeking salary history from applicants.
- Off the Clock Suits: The wage and hour class action is slowing down, but is still a significant threat. With changing workforce practices, employers must stay vigilant that non-exempt employees record all of their working time, and supervisors are trained not to allow compensable work before or after shifts.
- Immigration Reform: It looks like we may see comprehensive immigration reform in 2019. That will likely mean changes to the I-9 process and possibly mandatory E-Verify. Stay tuned.
- Social Media: Employers are increasingly expected to act as the Facebook and Twitter police. With cyber-bullying and textual harassment moving into the workplace, employers will continue to face tough decisions on when and how to terminate employees for something said on social media without running afoul of the law.
- Paid Sick Leave: States and cities continue to pass laws requiring different levels of paid sick leave, which is creating a nightmare for multi-state employers looking for consistent policies. SHRM continues to lobby for a federal solution, and this trend will continue through the next presidential campaign.
- Intermittent FMLA: Employers are increasingly facing abuse of FMLA policies by employees claiming to need intermittent leave for headaches, sore backs, and other lingering conditions that can turn into a permanent license to be absent at will. Employers are pushing back through aggressive policies and enforcement, which will likely lead to increases in litigation and (hopefully) more guidance from the Department of Labor and courts.
It’s important to keep these issues in mind throughout the year. As an employer, you should consider the challenges that these issues could present and plan accordingly. We’ll continue to update you with the latest news and developments related to numerous HR concerns. Feel free to reach out to me with any questions.
A good job description can equip an employer with the best possible workforce available. Inaccuracies and oversights, however, can entangle your company in litigation for years. Bethany Salvatore and Bryant Andrews talk us through the importance of job descriptions here.
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In December 2018, Philadelphia enacted The Fair Workweek Employment Standards Ordinance, which has widespread ramifications for non-exempt workers in the retail, hospitality and food services industries. The ordinance, which takes effect January 1, 2020, targets employers with at least 250 employees and 30 locations worldwide and is aimed at providing full-time, part-time, seasonal and temporary workers with more predictability in their work schedules. It is expected to impact 130,000 workers in Philadelphia. Read more ›
Last month Michigan became the 10th state to approve the legal, recreational use of marijuana. With the addition of Michigan, nearly 80 million Americans (approximately 25% of the US population) live in areas with recreationally legal marijuana. A total of thirty-three states allow for the use of marijuana for medical treatment with a doctor’s prescription. Missouri and Utah became the most recent additions to the growing list of states allowing for medical marijuana after voters passed legalization measures last election cycle. Read more ›
Last week, a Nevada bank teller sued her employer for allegedly violating federal anti-discrimination laws by berating her and retaliating against her for requesting a private space to pump breastmilk. This lawsuit reminds employers that various federal, state, and local laws provide protections for nursing mothers. Because lactation is a pregnancy-related medical condition, less favorable treatment of a nursing mother can raise an inference of unlawful discrimination. Additionally, the Fair Labor Standards Act requires employers to provide “reasonable break time” and a private place, that is not a bathroom, for nonexempt (hourly) employees to pump breastmilk for up to one year after the child’s birth. Read more ›
In October 2018, NPR reported that the U.S. unemployment rate had dropped to 3.7 percent, the lowest rate in 50 years. In some states, like Colorado, where I live, the rate is even lower (3.1 percent, per Denver Post). Record low unemployment and a trend towards more progressive and creative thinking about benefits has led to some imaginative new approaches to parental leave. In this HR Headaches post, I’ll summarize five of the cutting-edge parental leave benefits employers are using to attract and retain top talent in a competitive job market. HR professionals should take note of these inventive ways to help employees with children balance work and life because I’ll bet that your competitors are. Read more ›
Approaching the Thanksgiving holiday, many people take time to give thanks for what they have. This is a good time to remind employers of the positive impact “giving thanks” has on their employees, work environments and their organizations’ cultures.
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Navigating the landscape of reasonable accommodation under the Americans with Disabilities Act (“ADA”) can be particularly challenging to clients in the healthcare industry. Need to wear a wrist brace? In most jobs, that would be no problem; in an area where a company must control for infectious diseases, it’s a no-go. Read more ›