Our prior posts have chronicled recent attempts by Congress and state legislatures to crack down on employers who misclassify employees as independent contractors, the most notable of which was the Employee Misclassification Prevention Act that, among other things, seeks to create a cause of action under the FLSA for misclassification and to require employers to keep records of hours worked by independent contractors. On September 15, Congress took yet another step in the enforcement direction when Senator John Kerry (D-Mass.) and Representative Jim McDermott (D-Wash.) introduced The Fair Playing Field Act of 2010 (S. 3786, H. 6128), which seeks to close a so-called “loophole” under the current tax regime.
For those who thought the proposed Paycheck Fairness Act had faded away, here is a wake-up call. After more than a year since the bill was passed by the House of Representatives and introduced in the Senate, the Senate Committee on Health, Education, Labor and Pensions is holding a new hearing on March 11 to focus on equal pay issues.
Many employers recognize the advantages of “alternative” work arrangements with independent contractors, consultants, freelancers, temporary staffers, and “as needed” workers. Generally, employers utilize these arrangements because they hope to obtain cost savings and increased flexibility, particularly in an uncertain business climate. In some companies, use of a contingent worker expands working capacity without increasing employee headcount, which can be particularly attractive during a hiring freeze.
Government agencies are being urged to step up their efforts to address the potentially widespread problem of improper classification of workers as independent contractors, according to a recent study by the United States Government Accountability Office (GAO). In a 70-page document, the GAO concluded that the U.S. Department of Labor (DOL) and the Internal Revenue Service (IRS) have not sufficiently focused on misclassification in the past, and that they have not consistently assessed penalties against companies found to have improperly classified workers.
As discussed in prior blog posts, here, here, and here, pay equity is a hot topic for employee retention and compliance. This principle of equal pay for equal work has been mandated since the Equal Pay Act of 1963 and reiterated in Title VII of the Civil Rights Act of 1964. More recently, legislators at the federal, state, and local level have increased their focus on pay equity and pay transparency initiatives. Because of this legislative activity, pay equity has also received increased attention from the Plaintiffs’ bar, and in recent years, pay equity lawsuits have been brought with increasing frequency. Against this backdrop, employers face the tough task of navigating a complex patchwork of pay equity laws in order to achieve fair and legally-compliant compensation practices, while ensuring that their compensation decisions can reflect the reality of a workforce with differing job positions, responsibilities, and performance outcomes.Continue Reading Pay Equity Claims Are on the Rise – How Are Courts Interpreting the Differences in State and Federal Laws?
National Labor Relations Board General Counsel Jennifer Abruzzo recently asked the National Labor Relations Board (“Board”) to overrule its decision in Caesars Entertainment d/b/a Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019) (“Rio All-Suites”). The Rio All-Suites Board overruled the Board’s prior decision in Purple Communications, Inc., 361 NLRB 1050 (2014) (“Purple Communications”), which in turn overruled the Board’s decision in Register Guard, 351 NLRB 1110 (2007). All three cases deal with whether the National Labor Relations Act (“Act”) gives employees the right to use an employer’s email systems to engage in union and other protected concerted activities.Continue Reading The NLRB is Reviewing Union Access to Employer Email and Electronic Communications Systems
Just days ago, the highest court in Massachusetts—the Supreme Judicial Court (“SJC”)— decided whether former food delivery drivers for GrubHub could escape their arbitration agreements and bring a wage and hour class action lawsuit in court. In excellent news for employers operating in the intrastate delivery sector, the SJC held that they could not. Archer v. GrubHub, Inc., SJC-13228. 2022 WL 2964639 (July 27, 2022) (“GrubHub II”).Continue Reading Massachusetts High Court Decides Intrastate Delivery Drivers Unable to Ditch Their Arbitration Agreements
On October 4, 2021, the United States Supreme Court denied certiorari on a petition challenging the Ninth Circuit’s ruling that California’s strict meal and rest period rules do not apply to commercial truck drivers engaged in interstate commerce. The Court’s denial of the petition leaves in place a decision that came as a welcome sigh of relief for employers in the trucking industry.
On November 10, 2021, three federal agencies tasked with enforcing workplace laws announced a joint initiative to combat retaliation in the workplace. As a refresher, the EEOC protects a worker’s right under Title VII and other non-discrimination laws to enjoy a workplace free from harassment and discrimination. The DOL enforces federal labor standards per the Fair Labor Standards Act, as well as health and safety regulations through OSHA. The NLRB generally protects a worker’s right to organize to improve working conditions, among other rights guaranteed by National Labor Relations Act.
Federal contractors can make their own determinations on vaccination exemptions and do not need to terminate employees who refuse vaccination, according to new guidance from the Biden Administration.