Thursday, May 6, 2021

DOL withdraws Trump-era proposed independent contractor rule

We've got an early contender for least surprising news of the year... DOL is withdrawing the Trump-DOL independent contractor rule. You can read all about the now-dead proposed rule in my prescient January 7, 2021 entry (okay, you didn't need a crystal ball to see this one comin'), DOL publishes new independent contractor rule, but is it DOA? That rule is withdrawn, effective today.

So, where are we now? Well, the "supplementary information" in the formal withdrawal notice in the Federal Register points us to the "economic realities" test. This test distinguishes between independent contractors, who are "engaged in a business of [their] own," and employees, who "as a matter of economic realities are dependent upon the business to which they render service." The notice provides a fair amount of analysis, and identifies some specific factors:

(1) The degree of the employer's right to control the manner in which the work is to be performed; 
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(2) the worker's opportunity for profit or loss depending upon his or her managerial skill; 
(3) the worker's investment in equipment or materials required for his or her task, or employment of helpers; 
(4) whether the service rendered requires a special skill; 
(5) the degree of permanence of the working relationship; and 
(6) whether the service rendered is an integral part of the employer's business.

That said, the list is not exhaustive, and different courts have utilized assorted variations. 

Bottom line: If you thought the proposed rule from January was going to make classifying workers as independent contractors easier - well, it's not, because that rule's dead now. There's nothing groundbreaking in the withdrawal though. As always, I have a few caveats:

  • This notice applies to classification of workers under the FLSA - different courts and agencies apply different tests when analyzing classification under different statutes;
  • Even under the FLSA, the federal courts have tended to do their own thing and not give too much deference to ever-changing views of the DOL;  and
  • Even the DOL changes its mind sometimes. 
That said, this latest notice provides insight into the DOL's views on classification, and some factors for businesses to consider when classifying workers. 

Friday, April 23, 2021

Court won't seal employment law case to hide from prospective employers

I don't usually cover District of Oregon case, but this one is pretty interesting. In Delplance v. Window Products, Inc., the plaintiff filed a lawsuit claiming that he was unlawfully terminated under the Equal Pay Act, Fair Labor Standards Act, and state laws. He settled the case.. but guess what? The case still appears on the public docket, and was subsequently copied all over the internet. 

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The plaintiff asked the court to seal the entire case file, because "prospective employers have asked plaintiff about the case during several job interviews," and yet he can't discuss the case under the terms of the settlement agreement. Obviously, it is important for court cases to generally be available to the public so that citizens can "keep a watchful eye on the workings of public agencies." See, Nixon v. Warner Communications.

Courts therefore require a "compelling reason" to seal otherwise public records. Not surprisingly, the Court declined the invitation here:

Plaintiff’s request to seal this entire case along with all associated electronic records because potential employers’ knowledge of this lawsuit has caused them to ask difficult questions during interviews and made it hard for him to find work does not meet the “compelling reasons” standard. And plaintiff fails to cite any legal authority to suggest that it does.

The request was denied.  

HT: Court Refuses to Seal Case That Plaintiff Wanted to Hide from Potential Employers by Eugene Volokh. 

Monday, April 12, 2021

DOL publishes guidance on COBRA premium assistance under ARP

The American Rescue Plan (ARP) includes premium assistance for people who continue their health insurance coverage via COBRA. The Department of Labor (DOL) recently published guidance on the COBRA premium subsidy

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Who's eligible? People who qualify for COBRA due to a reduction in hours or an involuntary termination (unless the termination was for "gross misconduct"). But, the subsidy excludes people who are "eligible for other group coverage, such as through a new employer's plan or a spouse's plan . . . or if [they] are eligible for Medicare." 

The premium assistance generally runs from April 1, 2021 to September 30, 2021. The employer or plan is "entitled to a tax credit for the amount of the premium assistance." The guidance also includes some Model Notices, which is helpful. Check out the full guidance for additional information and answers to more questions. 

Wednesday, April 7, 2021

Pennsylvania: Telework now just "strongly encouraged"

 Governor Wolf issued a new executive order, effective April 4 (i.e. now). The Order leads off with big news on the telework mandate that has been in effect for months:

All businesses are strongly encouraged to conduct their operations in whole or in part remotely through individual teleworking of their employees in the jurisdiction or jurisdictions in which they do business.

The prior orders required employers to conduct business remotely through employee telework "[u]nless impossible." So, we've gone from mandatory telework if possible, to telework is "strongly encouraged." 

Tuesday, April 6, 2021

Justices Gorsuch and Alito on inconsistent application of "undue hardship" under ADA and Title VII

I was juuuust talking about this in my employment law course. As luck would have it, we discussed both disability accommodation (under the ADA) and religious accommodation (under Title VII). I, of course, explained that an employer is not required to accommodate an employee (under either statute) if the accommodation would impose an "undue hardship" on the employer.  

Now, here's the weird part . . . under the ADA, "undue hardship" means "significant difficulty or expense in light of the employer's financial resources, the number of individuals it employs, and the nature of its operations and facilities." Under Title VII, it means "more than a de minimis cost." Same phrase. Different meanings. (quotes from Small, link below).

The miniscule bar for religious accommodations under Title VII was placed by the Supreme Court in Trans World Airlines, Inc. v. Hardison. The end result is that employers face a far more demanding obligation to accommodate disability compared to religion. Notably, both USERRA (in addressing an employer's obligation to restore a returning servicemember to their prior position) and the ACA (providing breaks for nursing mothers) utilize the ADA standard.  

Yesterday, the Supreme Court denied certiorari in (decided not to hear) Small v. Memphis Light, Gas & Water. Justices Gorsuch and Alito penned a dissent from denial of cert. They wanted SCOTUS to take this religious accommodation case and "correct" the "mistake" of Hardison. The de minimis standard remains the definition of "undue hardship" for religious accommodations... for now. The current SCOTUS lineup seems pretty favorable to religious accommodations though, so the de minimis standard's days may be numbered. 

Wednesday, March 24, 2021

What are the 12 duties that make someone a "supervisor," not protected under the NLRA?

 The National Labor Relations Act (NLRA) was designed to regulate the relationship between labor and management. Not surprisingly, it must therefore draw a line between the employees who receive protections (for things like union advocacy, concerted activity, union membership, etc.) and the people who supervise them. 

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Under the NLRA, the term "employee . . . shall not include any individual employed as a supervisor." 29 U.S.C. § 152(3). Who's a supervisor? Per the NLRA:

The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

29 U.S.C. § 152(3). If you parse it just right, that's 12 different duties that would make someone a supervisor. Note all of the "or's" in there - no need to hit all 12, any one will do.