Thursday, February 27, 2020

NLRB: We have a new "joint employer" final rule too!

Noooo, not the new FLSA joint employer final rule from DOL. This is a different one. On Tuesday, the NLRB issued a final rule regarding joint employers under the NLRA (press release).
Not official use.
To be a joint employer under the final rule, a business must possess and exercise substantial direct and immediate control over one or more essential terms and conditions of employment of another employer’s employees.
You can read the actual Final Rule here (the regs are pretty short, running from pp. 191-94). The NLRB has provided specific definitions for many terms. Most notably, the "essential terms and conditions of employment" are defined as "wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction." For each of those eight categories, the rule defines what it means to exercise "Direct and Immediate Control."

You may recall that the DC Circuit asserted its dominance about a year ago in Browning-Ferris - applying the common law test, and basically holding that the Court and not the NLRB rules on this issue. That said, the Court did leave open room for the NLRB to "color within the common-law lines identified by the judiciary." In the final rule, the NLRB claims that it did just that. Courts will ultimately have the final say though.

Wednesday, February 19, 2020

DC Circuit on NLRB jurisdiction over religious universities

The D.C. Circuit recently published its opinion in Duquesne University of the Holy Spirit v. NLRB. Basically, a bunch of adjunct faculty at Duquesne, a Catholic school in Pittsburgh, sought to unionize.

The D.C. Circuit pointed to past precedent in Great Falls and Carroll College:
Not official use.
[W]e established a “bright-line” test for determining whether the NLRA authorizes the Board to exercise jurisdiction in cases involving religious schools and their teachers or faculty. Under this test, the [NLRB] lacks jurisdiction if the school 
(1) holds itself out to the public as a religious institution (i.e., as providing a “religious educational environment”);  
(2) is nonprofit; and  
(3) is religiously affiliated. 
 (reformatted). Long story short, the majority concluded that his case "begins and ends" with the prior precedent. Duquesne holds itself out as a religious school, is a nonprofit, and is religiously affiliated. Case closed. The NLRB has no jurisdiction.

The majority did not endeavor to address other arguments, including the Religious Freedom Restoration Act (RFRA) minefield.

The dissent would have looked at the actual employees (the adjuncts) involved, concluding that "[n]ot every religious school’s religious character necessarily requires that its adjuncts leave their NLRA rights at the door."

Friday, February 7, 2020

Don't forget your new I-9s!

Just a quick reminder that employers should start using the new I-9 posted here. Also, it's a good idea to get in the practice of always going online to print a new copy - that way you know you'll be using the latest (and greatest?).

Tuesday, February 4, 2020

Looks like the Pennsylvania overtime rule is back

Straight from the Department of Nothing Can Ever Be Simple - looks like the Pennsylvania overtime regs are back in business. To refresh your memory (or in the event that you haven't been following this debacle):
  • The United States Department of Labor issued a new overtime rule, raising the minimum salary threshold for the white collar exemptions to $684/week; 
The Governor warned that if the compromise legislation didn't move forward in January, then the new overtime regulation was comin'. The compromise legislation didn't move forward, so guess what? The Independent Regulatory Review Commission approved the new reg on January 31, 2020

It's not quite a done deal yet - but it's heading in that direction. We may see some judicial or legislative roadblocks before this is all said and done. 

Wednesday, January 29, 2020

New chart: EEOC Discrimination Charge Data for FY1997-2019

The EEOC recently released its charge statistics for fiscal year 2019. As I do every year, I updated my chart to visually depict the charge data:


A few observations:

  • Charges are down across all of the major categories for the third straight year;
  • GINA continues to be a non-factor (for number of charges) with only 209 last year; 
  • Equal Pay Act claims have seen a modest increase the past two years;
  • Long-term, you see a spike around the 2008 financial crisis (of course, one would expect a drastic increase in adverse employment actions to lead to an increase in charges), and then a fairly stead decline. 

Monday, January 13, 2020

New FLSA joint employer final rule from DOL

The Department of Labor (DOL) published its final rule regarding joint employer status under the Fair Labor Standards Act (FLSA) (press release | actual final rule). I suppose the headliner is the 4-factor test for analyzing whether a putative joint employer is actually deemed a joint employer.
Not official use.
[T]he Department is adopting a four-factor balancing test derived from Bonnette v. California Health & Welfare Agency to assess whether the other person: 
(1) hires or fires the employee; 
(2) supervises and controls the employee’s work schedule or conditions of employment to a substantial degree; 
(3) determines the employee’s rate and method of payment; and 
(4) maintains the employee’s employment records. 
No single factor is dispositive in determining joint employer status, and the appropriate weight to give each factor will vary depending on the circumstances.
The remainder of the rule is worth perusing for some additional helpful tidbits, including:
  • A joint employer must actually exercise (directly or indirectly) one of the "four control factors" - the ability, power, or reserved right is not enough;
  • "[W]hether the employee is economically dependent on the potential joint employer is not relevant for determining the potential joint employer’s liability under the Act";
  • "The Department’s proposal identified certain business models (such as a franchise model), certain business practices (such as allowing the operation of a store on one’s premises), and certain contractual agreements (such as requiring a party in a contract to institute sexual harassment policies) as not making joint employer status more or less likely under the Act."
The final rule becomes effective on March 16, 2020. 

Friday, December 27, 2019

SCOTUS will take another crack at ministerial exception to employment discrimination claims

Almost 8 years ago, a unanimous Supreme Court recognized that the First Amendment's Religion Clauses create a ministerial exception to the ADA in Hosanna-Tabor v. EEOC. The Court held that a "called" teacher, who performed "important religious functions" could not file a lawsuit under the ADA.

Welp, get ready for round 2, because the Supreme Court just granted certiorari and will hear two consolidated cases:

Our Lady of Guadalupe School v. Morrisey-Berru - A Catholic school teacher filed an ADEA lawsuit, and the Ninth Circuit refused to apply the ministerial exception, in part because she did not hold a religious title. Hosanna-Tabor clearly held that a title is "relevant" but not determinative. The school argues that the plaintiff taught daily religious education classes through prayer, worship, and instruction, and "modeled" Catholic behavior. She had some other religious activities too, like directing an annual performance of The Passion.

St. James School v. Biel -  Another appeal from - you guessed it! - the Ninth Circuit. It's another case involving a Catholic school teacher. The Ninth Circuit applied something like a 4-factor test, looking at serving important religious functions, title, training, and tax benefits. The teacher only met the first factor, and so the Ninth Circuit held that the ministerial exception did not apply. Reading Hosana-Tabor, I think this is likely wrong. While all of those things are relevant, they are not equal or necessary elements.

I'm not a betting man, but I suspect the Ninth Circuit will not fare well here. The case has not yet been scheduled for argument, but will presumably be heard sometime in the next few months.