Monday, October 17, 2016

NY: Uber drivers are employees for unemployment claims

Uber logo used in commentary;
not licensed use.
The ongoing saga continues... are Uber drivers employees or independent contractors? I don't usually cover out-of-state unemployment compensation decisions. That said, I enjoy the back-and-forth regarding Uber drivers; so, here's an article on just such a decision: Uber Drivers Ruled Eligible for Jobless Payments in New York State.

I'm inclined to think that they're independent contractors. I'm also inclined to question our current framework - in particular, the huge importance we place on a binary classification of independent contractor versus employee. The reality is almost always some shade of gray.

If you're in Pennsylvania and/or the Third Circuit, I've written on the various tests - New Article: Is your Independent Contractor an Employee?

Tuesday, October 11, 2016

3d Cir: Paid lunches cannot offset unpaid overtime

Last Friday, the Third Circuit Court of Appeals issued a precedential employment law decision in Smiley v. E.I. Dupont de Nemours & Co.

Not official use.
A group of employees claimed their employer did not pay them overtime for time they spent "donning and doffing" their uniforms and protective gear (yes, for my non-attorney readers, that's seriously what we call it, "donning and doffing" - "putting on and taking off" reeks of layperson speak, ya know?). That's an FLSA violation.

The employer, however, paid the employees for lunch breaks even though the FLSA does not require compensation for meal breaks. The employer wanted to use that compensation to offset any overtime pay they owed to their employees for the donning and doffing. That makes sense, right? The employer paid them too little for overtime, but it paid them too much for meal breaks... let's just balance it out.

How did the Court rule?
Nothing in the FLSA authorizes the type of offsetting DuPont advances here, where an employer seeks to credit compensation that it included in calculating an employee’s regular rate of pay against its overtime liability.
Employer loses. This is a plausible reading of the FLSA but it seems to defy common sense. Then again, sometimes I think the FLSA and common sense may be mutually exclusive.

The Court (and the FLSA) did note that certain "extra compensation" can serve as an offset. Specifically, certain "premium rates" paid to employees who work certain shifts.

Friday, September 30, 2016

New paid sick leave regs - come and get 'em!

Not official use.
Not gonna lie, I haven't even spent 30 seconds reviewing the Department of Labor's final rule regarding paid sick leave for federal contractors yet. However, I know it's a big deal and that a lot of you have been waiting for them. Here's the 466-page final rule; or, perhaps the much shorter Fact Sheet is more your speed. DOL has a whole host of paid sick leave-related resources here.

Enjoy! And fear not, I will read them and address them in greater detail soon.

Thursday, September 29, 2016

EEOC sues hospital over employee flu shots

As the Legal Intelligencer reports, EEOC Sues Hospital for Bias in Demanding Employee Flu Shots:
The Equal Employment Opportunity Commission has taken up the case of a group of nurses and medical workers who claim they were fired from an Erie-based hospital over their religious objections to mandatory flu vaccinations.
Right here in the  Middle District of Pennsylvania!

We've been down this road (or at least a similar road) before. You can read my legal analysis of a similar claim involving vaccines here. In short:
  • Can the employer accommodate the flu shot-less employees without incurring an undue hardship?
  • Does the lack of flu shot pose a direct threat to health or safety?

Thursday, September 22, 2016

Is race discrimination bad for business?

Economics tells us businesses that discriminate based on race are at a competitive disadvantage against non-discriminating firms. Common sense tell us that the discriminators also face increased costs imposed by anti-discrimination statutes (assuming the enforcement mechanisms of EEOC, state agency, and private litigation impose higher costs on discriminating firms). Do we have empirical evidence to confirm these theories?

Yes! Well, we at least have a start. Economist Alex Tabarrok at Marginal Revolution (and faculty at my law school alma mater, George Mason!) blogs Firms that Discriminate are More Likely to Go Bust. He links to a paper published in Sociological Science (Are Firms That Discriminate More Likely to Go Out of Business?) and notes:
The author, Devah Pager, is a pioneer in using field experiments to study discrimination. In 2004, she and co-authors, Bruce Western and Bart Bonikowski, ran an audit study on discrimination in New York using job applicants with similar resumes but different races and they found significant discrimination in callbacks. Now Pager has gone back to that data and asks what happened to those firms by 2010? She finds that 36% of the firms that discriminated failed but only 17% of the non-discriminatory firms failed.
As noted above, this seems logical; but, it's nice to have some actual data.

Thursday, September 15, 2016

New whitepaper: Defend Trade Secrets Act of 2016

Chris Michelone
On May 11, 2016, President Obama signed the Defend Trade Secrets Act of 2016 ("DTSA") into law marking one of the biggest expansions of federal intellectual property law in decades. My colleague, Chris Michelone, analyzed the new law and its implications for businesses and employers in a new whitepaper: Defend Trade Secrets Act of 2016 (PDF). Enjoy! 

Tuesday, September 13, 2016

Miles on New EEOC Retaliation Guidance

Not official use.
Straight from the shameless self-promotion department, here's a link to an HR BLR article regarding the EEOC's new retaliation guidance. I consulted with the author, Kate McGovern Tornone, and she included some quotes from me in the article.

You can read the EEOC's new Enforcement Guidance on Retaliation and Related Issues here. The article addresses a few hot-button issues, such as:
  • New protection for bad faith or unreasonable internal reports;
  • Protected activity relating to sexual orientation discrimination;
  • The "manager rule"; and 
  • ADA interference provisions.