More On Joint Employer Status From The Department Of Labor

Earlier this week, the Wage and Hour Division (WHD) of the Department of Labor issued an Administrator's Interpretation No. 2016-01 (AI) on joint employment under the Fair Labor Standards Act (FLSA) and the Migrant Seasonal Agricultural Worker Protection Act (MSPA).  The guidance reconfirms existing WHD policy, which identifies common scenarios in which two or more employers jointly employ an employee and are thus jointly liable for compliance....
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The NLRB's Big Mac Attack

Randi Klein Hyatt
Randi Klein Hyatt
01/13/2016
The National Labor Relations Board recently heard two interlocutory appeals by McDonald’s that arise out of a sprawling case against it and a number of its franchisees. The General Counsel filed 61 unfair labor practice charges in 6 regions. The charges were brought against 31 parties (30 franchisees and the corporate franchisor) and allege 181 violations. The General Counsel did not allege that McDonald’s (the corporate franchisor) engaged in...
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EEOC Provides Guidance Regarding Muslim and Middle Eastern Employees

On the heels of the recent terrorist attacks in Paris and San Bernardino, EEOC Chair Jenny R. Yang recently issued a statement to “Address Workplace Discrimination Against Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern.” Along with the statement, the EEOC released two “resource documents” to provide guidance to employees and employers on how to handle workplace situations involving discrimination against individuals...
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Sexual Orientation Discrimination Covered By Title VII?

David Baldwin, a Supervisory Air Traffic Control Specialist at Miami International Airport, filed a federal lawsuit because he was denied a promotion to a permanent position as a Front Line Manager.  The lawsuit filed under Title VII alleges that Baldwin was discriminated against because of his sexual orientation.  While many state laws explicitly provide that sexual orientation cannot be the basis of an employment action, Title VII does not...
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New OFCCP Rule Will Prohibit Rules Limiting Salary Discussions

Randi Klein Hyatt
Randi Klein Hyatt
09/11/2015
On September 11, 2015, the Department of Labor’s Office of Federal Contract Compliance Programs issued its Final Rule in response to Executive Order 13665. The Rule, which can be found here, is codified at 41 CFR Part 60 and becomes effective in 120 days. The Rule prohibits federal contractors (or subcontractors) with contracts (or subcontracts) worth over $10,000 from discriminating against employees (including supervisors) or job applicants...
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Obama NLRB Overhauls “Joint Employer” Standard

Kollman & Saucier
Kollman & Saucier
09/01/2015
In a move less surprising for its outcome than the breadth of its likely effects, President Obama’s NLRB adopted, by a 3-2 vote, a new standard for joint employers in Browning-Ferris Industries. Case 32-RC-109684 (Aug. 27, 2015). The aftershocks of the Board’s decision, which overturned three decades of stable case law, may very well revamp the landscape of collective bargaining. Section 8(a)(5) of the National Labor Relations Act (NLRA)...
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Plaintiff Bears Burden of Maintaining Correct Address with EEOC

Kollman & Saucier
Kollman & Saucier
07/29/2015
An individual who files a charge of discrimination with the EEOC or similar state agency is required to provide the agency with his or her contact information, including a mailing address and phone number, so that the agency can notify him or her of any developments, including the outcome of the charge. Current regulations require the individual to notify the agency “of any change in address and . . . any prolonged absence from that current address...
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EEOC Rules Discrimination Based on Sexual Orientation Violates Title VII

Bernadette Hunton
Bernadette Hunton
07/23/2015
An employee alleges a claim for discrimination based on sexual orientation but sexual orientation isn’t mentioned under Title VII. Does the employee have a viable Title VII claim? According to the Equal Employment Opportunity Commission’s (EEOC) recent opinion in Complainant v. Foxx, E.E.O.C., Appeal No. 0120133080 (7/16/15), the answer is “Yes.” In the view of the EEOC, “allegations of discrimination on the basis of sexual orientation...
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New DOL Guidance Makes The Independent Contractor A Rare Breed Indeed

Randi Klein Hyatt
Randi Klein Hyatt
07/16/2015
On July 15, 2015, the Department of Labor (DOL), through its Wage and Hour Division, issued its first Administrator’s Interpretation (AI) of the year, and in more than a year (2015-1).  AI 2015-1 focuses on the always complex issue of independent contractor versus employee classification under the Fair Labor Standards Act (FLSA).  The DOL has not held back, at all.  This AI makes clear the DOL has little tolerance for the concept of independent...
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Obama Administration Seeks to More Than Double Salary Requirement for Overtime Exemption

Randi Klein Hyatt
Randi Klein Hyatt
07/02/2015
On June 30, 2015, the Obama Administration unveiled a long-anticipated proposed rule increasing the threshold amount required to be paid to certain salaried workers before they are exempt from receiving overtime. The current rule is that any salaried worker who earns below $455 a week or $23,660 per year (i.e., less than the poverty line for a family of four) must receive overtime. The proposed rule would more than double that to $50,440 (i.e. close...
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