The NLRB Joint Employer Pendulum Swings Back Again…

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If your company engages with contractors to perform services you may think are completely unrelated to your business at first glance…beware.  It will soon be more likely that the National Labor Relations Board (“NLRB”) will deem the s employees to be yours.  For years, political interests have created a pendulum where the government seems to encourage the use of independent contractors, or severely scrutinize it to reduce contractor status.  The pendulum is indeed swinging back again.

After many years of following a single standard for determining joint employer status, the NLRB established a new and restrictive standard in 2015 with the Browning-Ferris case.  In Browning-Ferris, the Board held that a company could be deemed the joint employer of its contractor’s employees even if it did not exercise direct or immediate control over those employees.  For the Board in Browning-Ferris, the mere “possibility” that the company “could” exercise that control was enough to make it an “employer” for all purposes under the NLRA.

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Avoiding Unfair Labor Practices (ULPs)

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In January 2021, I made several “way too early” pre-season predictions about then president-elect Joe Biden’s agenda regarding labor and employment. High on President Biden’s wish list was the Protect the Right to Organize Act (“PRO”), which would substantially strengthen labor law to the advantage of employees and unions. Congressional Democrats have been unable to push the PRO Act through Congress so far, but that does not appear to have inhibited the Biden administration’s attempts to bolster organized labor.

Several high-profile unionization efforts at Amazon, Apple, and Starbucks are indicative of a motivated labor movement. The National Labor Relations Board (“NLRB”) recently reported that union representation petitions filed with the NLRB in the first nine months of fiscal year 2022 (October 1 – June 30) were up 56% from the first nine months of fiscal year 2021.

Even employers who are not facing any attempts at organizing their workforce have felt the impact. The Biden administration’s union-friendly agenda appears to be emboldening the NLRB to target all employers, even if their workforce is not unionized. The NLRB’s new general counsel has issued several edicts directing Board agents to seek more severe remedies for violations of labor law, and expressed that Board staff should pursue cases more aggressively in various areas, including employer handbook rules, confidentiality provisions, and employees engaging in protected concerted activities.

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DON’T IGNORE IRS ESRP NOTICES!

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Employers continue to receive nastygrams from the IRS threatening “Employer Shared Responsibility Payments” (ESRP). These penalties are assessed against an employer that doesn’t offer compliant, affordable group health coverage to a sufficient percentage of its employees when an employee who isn’t offered compliant, affordable coverage obtains tax-subsidized health coverage via the federal “marketplace.”

In our experience, and with just a few exceptions, the penalty notices are generated not because of an actual violation of the rules, but because of incomplete or incorrect reporting on IRS Forms 1094-C or 1095-C, which are the reporting forms the large employers use to report health coverage offered to employees.

Often an employer delegates responsibility for preparing the reporting forms to its payroll provider or a consulting firm. Employers should review these forms before they are filed. For example, does the form check the correct box indicating whether coverage was offered to employees? We have seen numerous ESRP penalties assessed based on forms stating that coverage was not offered when in fact the employer had offered coverage. Employers should look for other obvious errors such as inconsistent information, checkboxes not marked, blanks not filled in, etc.

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REGISTER NOW! Annual Labor & Employment Law Seminars

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After a two-year hiatus, we are thrilled to be back in person! This year’s theme is “When Really Bad Things Happen to Really Good Employers…”

Our annual seminars draw hundreds of human resource professionals, in-house counsel and senior executives from Florida’s top businesses. And for good reason! No one does events quite like we do – our seminars are not just lectures, they are learning experiences. This year will not disappoint. In addition to the Miami and Tampa seminars, we are excited to host our first annual Tallahassee seminar!

Find out more and register now using the link for your city below. Pending HRCI Credits, SHRM Credits and The Florida Bar CLE Credits. We look forward to seeing you in the fall!

Miami | October 14 | 8am-4pm | Jungle Island | REGISTER FOR MIAMI

Tampa | October 21 | 8am-3pm | Centre Club | REGISTER FOR TAMPA

Tallahassee | November 4 | 8am-1:30pm | Turnbull Center | REGISTER FOR TALLAHASSEE

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Working on July 4th… Downtime or Overtime?

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Reposting due to popular demand. 

Nearly two and half years into the pandemic, people are itching to connect in group settings. The 4th of July is a major holiday where folks get to spend time with loved ones, travel and embrace their time off work.

This holiday is always eagerly anticipated, so much so that many employers have started providing employees with a four-day weekend when the holiday falls on a Tuesday or Thursday, or a three-day weekend, when the holiday falls on a weekend, Monday or Friday.  Other employers provide employees with a half day off on July 3rd.  It is natural, then, that when the holiday falls mid-week, employers find themselves fielding PTO requests for the days surrounding the holiday.  The truth is, however, that the vast majority of employers only provide employees with the day off on July 4th itself, no matter what day of the week it falls on.

This leads to an interesting question.  Does an employer have to pay an employee overtime for requiring them to work on July 4th?

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It’s Hurricane Season Once Again!

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Is it June already?  I wish that only meant that it is mango season in Florida, but unfortunately, it means the start of another hurricane season.  Last year, we were lucky enough to have Hurricane Specialist Bryan Norcross’s forecast for the 2021.  If you want to see whether Bryan got it right last year or rather watch a video of me presenting hurricane preparedness tips, you can watch my segment in “Breaking Through The Noise: Labor & Employment Issues Post-Pandemic” (timestamp: 1:44:47-1:53:00) available ON DEMAND. Feel free to forward the link to your friends and colleagues.

For those who prefer to read, below are tips on how to prepare your business for the new hurricane season.

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U.S. Supreme Court Cracks Down on Late Arbitration Demands

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Does your company have employees that sign agreements to arbitrate any disputes arising from their employment contracts? Then a recent U.S. Supreme Court case serves as a cautionary tale for companies looking to enforce these arbitration agreements.  The lesson is to demand arbitration as early as possible or else you risk waiving the right if you make a motion to compel arbitration later down the road.

On May 23, 2022, the United States Supreme Court decided Morgan v. Sundance, Inc., which concerned the correct test to apply when deciding whether a party has waived the right to arbitrate.  In this case, Plaintiff was an hourly employee at a Taco Bell owned by Sundance.  He later filed a nationwide collective action suit against Sundance, alleging wage and hour violations.  In Plaintiff’s employment contract, he signed an agreement to arbitrate any employment disputes.  However, the Defendant litigated the case in federal court for several months making motions to dismiss, answering the complaint, and attending mediation, before ultimately making a motion to compel arbitration under the Federal Arbitration Act (“FAA”).  The issue for the Court was whether the Defendant had waived their right to arbitrate the matter.

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USCIS Expands Automatic Extension of Select EADs from 180 to 540 Days

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On May 4, U.S. Citizenship and Immigration Services will increase the automatic extension of work authorization from 180 to 540 days for certain applicants for an employment authorization document (EAD).  The existing requirements of the rule will remain the same.  To qualify for the now 540 day automatic extension of work authorization, the individual:

  1. Must hold an EAD issued under one of the qualifying categories – A03, A05, A07, A08, A10, A17*, A18*, C08, C09, C10, C16, C20, C22, C24, C26*, C31, and A12 or C19.
  2. Must have filed a Form I-765 application for work authorization to extend the EAD before the EAD expired.
  3. Must have filed the Form I-765 under the same qualifying category as reflected on the face of the expiring EAD.  (In the case of employees with Temporary Protected Status (TPS), any combination of C19/A12 on the EAD and Form I-765 fee receipt applies.

*In the case of H-4, L-2, and E dependent status, they must also present an unexpired Form I-94 reflecting their H-4, L-2, or E status, as applicable.
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Wake Up: What Every Florida Employer Needs to Know About the “Stop WOKE Act”

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We also discussed this in our Labor & Employment client alert here.

On March 10, 2022, the Florida legislature passed House Bill 7 (“HB 7”), the Stop the Wrongs to Our Kids and Employees (W.O.K.E.) Act, officially named “Individual Freedom,” but also known as the “Stop WOKE Act.”  The bill applies to Florida employers with 15 or more employees and aims to restrict how employers conduct training on race and sex.  Governor DeSantis signed the bill into law on April 22, 2022.  The bill also imposes limits on how public schools can talk about race and gender, which is outside the purview of this blog.

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Can You Force Your Employees to Arbitrate Sexual Harassment Claims?

Simple answer – nope!   On February 10, 2022, inspired by the #MeToo movement, the U.S. Senate passed H.R. 4445, an amendment to the Federal Arbitration Act (“FAA”), also known as the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.”  I guess the acronym would be “EFASASHA,” but that looks kind of silly, so I’ll refer to it as the “Act.”  President Biden signed this bill into law on March 3, 2022.

If your employees have signed pre-dispute arbitration agreements (e.g., as part of a contract or offer letter), they can no longer be forced to arbitrate cases involving sexual harassment or sexual assault.  The Act also prohibits employers from requiring employees to sign agreements waiving their right to bring sexual harassment/sexual assault claims jointly or on a class basis.

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