Two Federal Agencies Make it Easier to Establish Independent Contractor Status

Q.  What is the standard for determining whether a worker is an independent contractor for purposes of federal wage and hour laws and union organizing conduct?

A.  Recently, both the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB) issued documents supporting independent contractor status, evidencing the more pro-employer stance of the Trump administration as compared to the Obama administration. Although those documents — an opinion letter from the DOL and an advice memorandum from the NLRB’s Office of General Counsel — apply only to misclassification claims under the Fair Labor Standards Act (FLSA) and the National Labor Relations Act (NLRA), respectively, they provide helpful guidance to companies on structuring their independent contractor relationships to minimize the risk of a misclassification claim. Companies should be mindful, however, that other laws — such as state wage and hour, unemployment compensation and workers’ compensation statutes — may impose higher burdens for proving that individuals are independent contractors.

To read the full article, click here.

Susan K. Lessack and Tracey E. Diamond

NLRB to Issue New Rules on Whether Student Workers Can Unionize

Q.  Are students who work in connection with their studies considered to be “employees” and therefore able to unionize?

A.  In a significant development for private colleges and universities, the National Labor Relations Board (NLRB) announced that it intends to propose rules that would establish a “standard for determining whether students who perform services at private colleges or universities in connection with their studies are ‘employees’” under the National Labor Relations Act (NLRA). The NLRB currently projects that the proposed rules will be issued in September 2019. It is widely expected that the rules, which will be proposed by the Republican-controlled Board, will make it more difficult for students to be classified as “employees” for the purpose of forming unions.

For more information, click here.

Christopher J. Moran & Lee E. Tankle

NLRB Provides Updated Guidance on Employer Policies and Handbooks

Q:        How does the current National Labor Relations Board view employee handbook policies?

A:        Under the Trump administration, the National Labor Relations Board (“Board”) has shifted in a more employer-friendly direction, including with respect to workplace policies.  In a December 2017 decision, the NLRB reassessed the standard for evaluating when neutral workplace rules violate the National Labor Relations Act (NLRA). In that decision, the Board defined three categories of employer handbook rules and policies: (1) rules that are generally lawful; (2) rules that warrant individualized scrutiny; and (3) rules that are plainly unlawful.

Those three categories were expanded in June 6, 2018, when the Board’s General Counsel issued a new Guidance Memorandum (18-04), providing updated guidance on how regional NLRB offices should investigate unfair labor practice charges involving employer handbook language and rules.

Category 1 Rules:  The Board has determined that employee handbook policies in this category generally are lawful, either because the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights, or because the potential adverse impact on protected rights is outweighed by the business justification associated with employer policy.  The examples provided in the Guidance Memorandum of the types of rules that fall into this category include:

  • Civility rules prohibiting “disparaging, or offensive language”;
  • No-photography and no-recording rules;
  • Rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations;
  • Disruptive behavior rules (for example, prohibiting conduct that creates a disturbance on company premises or creates discord with clients or fellow employees);
  • Rules protecting confidential, proprietary, and customer information or documents;
  • Rules against defamation or misrepresentation;
  • Rules against using employer logos or intellectual property;
  • Rules requiring authorization to speak for the company; and
  • Rules banning disloyalty, nepotism, or self-enrichment.

Category 2 Rules:   The Board has concluded that Category 2 rules are not “obviously lawful or unlawful, and must be evaluated on a case-by-case basis to determine whether the rule would interfere with rights guaranteed by the NLRA, and if so, whether any adverse impact on those rights is outweighed by legitimate justifications.” The Guidance Memorandum provides examples of rules that fall into this category, including the following:

  • Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in, or voting for, a union;
  • Confidentiality rules broadly encompassing “employer business” or “employee information” (as opposed to confidentiality rules regarding customer or proprietary information, which would be considered lawful, or confidentiality rules more specifically directed at employee wages, terms of employment, or working conditions, which is prohibited);
  • Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of employees, which is considered a lawful Category One rule);
  • Rules regulating use of the employer’s name (as opposed to rules regulating use of the employer’s logo/trademark, which is allowed as a Category One rule);
  • Rules generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer’s behalf, which is a lawful Category One rule );
  • Rules banning off-duty conduct that might harm the employer (as opposed to a rule banning insubordinate or disruptive conduct at work, which is a permitted Category One rule, or a rule specifically banning participation in outside organizations, which is an unlawful Category Three rule); and
  • Rules against making false or inaccurate statements (as opposed to lawful rules against making defamatory statements).

Category 3 Rules: The Board has found that rules in this category are generally unlawful because they would prohibit or limit NLRA-protected conduct, and the adverse impact on the rights guaranteed by the NLRA outweighs any justifications associated with the rule. The examples provided in the Guidance Memorandum of the types of rules that fall into this category include:

  • Confidentiality rules specifically regarding wages, benefits, or working conditions (such as a rule prohibiting employees from disclosing salaries and contents of employment contracts); and
  • Rules against joining outside organizations or voting on matters concerning the employer.

The Memorandum also advises the regional NLRB offices that they should no longer find unlawful any rule that could be interpreted as covering Section 7 activity and should now focus on whether the rule in question would actually be interpreted to cover Section 7 activity. The Memorandum instructs regional offices that “ambiguities in rules are no longer interpreted against the drafter, and generalized provisions should not be interpreted as banning all activity that could conceivably be included.”

Takeaways

The Board has moved significantly in the direction of limiting its influence over employer handbook policies. Whether a particular employer rule is lawful, however, may rest on subtle differences in policy language. Moreover, the Guidance Memorandum does not provide an exhaustive list of all lawful and unlawful handbook policies. For assistance in ensuring that your handbook rules do not impinge on employee rights to engage in concerted activity, we recommend consulting with labor and employment counsel.

Leigh McMonigle

 

Another Reset of NLRB’s Independent Contractor Test

Q.  What is the current standard for determining whether an individual is an employee or independent contractor for purposes of the NLRA?

A.   On Jan. 25, 2019, the Republican-led National Labor Relations Board affirmed the acting regional director’s decision that drivers of a shared airport ride service were independent contractors, not employees, and therefore not covered by the National Labor Relations Act.

The decision, which reverts back to the common law test for determining independent contractor status, will have a wide-ranging impact on other gig economy companies.

To read the full article, click here.

-Tracey E. Diamond and Susan K. Lessack

NLRB Proposes New Rule on Joint Employer Standard

Q.  What is the current rule for determining whether two employers are considered to be “joint employers” under the National Labor Relations Act?

A.  On September 14, 2018, the National Labor Relations Board (NLRB) proposed a new regulation that would make it more challenging to establish joint employer status under the National Labor Relations Act. The proposed rule dictates that two entities will be joint employers only if each exercises substantial direct and immediate control over employees.

As we reported previously, in 2015, the NLRB significantly relaxed the standard for proving that two entities are joint employers in Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (2015). In Browning-Ferris, decided during the Obama administration, the NLRB ruled that entities could be joint employers even if one had only indirect, limited and routine control or the unexercised right to control employees’ terms and conditions of employment. The NLRB reversed course in December 2017 during the Trump administration, overruling Browning-Ferris and reinstating the standard for joint employer status that had existed previously – that entities are joint employers only if each has exercised direct and immediate control over employees. See Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017). The Hy-Brand ruling was short-lived, however. The NLRB vacated that ruling earlier this year due to the conflict of interest of one of the NLRB’s members who participated in the decision. In the meantime, a petition for review of Browning-Ferris is pending in the D.C. Circuit Court of Appeals.

Now, the NLRB seeks to establish a stricter joint employer standard by regulation. Doing so would add more permanence to the joint employer standard than interpreting it through case law, which often changes from one presidential administration to the next. The NLRB explained in its Federal Register notice that it would benefit from public comment on the joint employer standard “given the recent oscillation on the joint-employer standard, the wide variety of business relationships that it may affect (e.g., user-supplier, contractor-subcontractor, franchisor-franchisee, predecessor-successor, creditor-debtor, lessor-lessee, parent-subsidiary, and contractor-consumer), and the wide-ranging import of a joint-employer determination for the affected parties.”

The NLRB’s proposed rule enunciates the following test for joint employer status:

An employer, as defined by Section 2(2) of the National Labor Relations Act (the Act), may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision and direction. A putative joint employer must possess and actually exercise substantial direct and immediate control over the employees’ essential terms and conditions of employment in a manner that is not limited and routine.

The NLRB included 10 examples with the proposed rule “to help clarify what constitutes direct and immediate control over essential terms and conditions of employment.” For example, the NLRB concluded that the following scenario reflects one company’s direct and immediate control over another company’s employees: Company A supplies labor to Company B and, pursuant to the contract between them, Company A is required to pay a particular wage rate. In that situation, Company B exercises direct and immediate control over wage rates. In another example, a franchisor requires its franchisee to operate the franchisee’s store between specified hours. The franchisor does not exercise direct and immediate control over the essential terms and conditions of employment of the franchisee’s employees because the franchisor is not involved in scheduling the franchisee’s employees or in determining shift durations.

The NLRB’s proposed rule will now go through the time-consuming rulemaking process. As employers wait for the publication of a final rule, companies can minimize the risk of joint employer status by avoiding involvement in decisions regarding another company’s employees, including decisions regarding pay, hiring, discipline or termination.

–Susan K. Lessack