Earlier this year, the National Labor Relations Board (“NLRB” or “the Board”)—with its 3-to-1 Republican-appointed majority—returned to its long-standing common-law test for determining whether workers are independent contractors (“ICs”) or employees, expressly overruling an Obama-era decision, which it said impermissibly altered the test by severely limiting the significance of “entrepreneurial opportunity” to the analysis. The importance of “independent contractor” status lies in the fact that ICs are not covered by the National Labor Relations Act (“NLRA”).
In SuperShuttle DFW, Inc. and Amalgamated Transit Union Local 1338 (Case No. 16-RC-010963), the Trump Board addressed the issue of whether franchisees who operated shared-ride vans were ICs and thus excluded from coverage under the NLRA. Relying on common-law agency analysis, the Board upheld a regional director’s decision finding the franchisees to be ICs. That traditional common-law analysis involves application and consideration of the following factors: Continue reading “Quick Flashback—NLRB Overruled Obama Board’s “Independent Contractor” Test”
On December 6, the Philadelphia City Council passed two pieces of legislation that already are being touted as altering the landscape for workers in the city, especially those in the service industry.
On Thursday, December 14, 2017, employers scored a significant victory at the National Labor Relations Board. The Board, in a straight 3-2 partisan vote, reversed its 2015 decision in Browning-Ferris Industries and eliminated the rule that employers and their contractors or franchisees can be deemed a “joint employer” even when one company does not exert direct control over the second entity’s workers.
New York State is considering new regulations that will restrict the ability of service industry employers to utilize “on-call” or “just in time” scheduling practices for shift workers. These scheduling practices are common in many industries and generally allow employers to schedule, cancel, or cut workers’ shifts with little or no advance notice.
On Monday, September 25, 2017, in a party-line vote of 49-47, the Senate (finally) confirmed William Emanuel to fill the only remaining open seat on the National Labor Relations Board for a five-year term. Mr. Emanuel joins fellow Trump appointee Marvin E. Kaplan, and, along with Chairman Philip A. Miscimarra, Republicans now control the majority on the five-member Board. Mr. Emanuel is a long-time management-side labor lawyer based in California at the law firm Littler Mendelson. Prior to his time with Littler Mendelson, Mr. Emanuel represented employers at Jones Day and Morgan, Lewis & Bockius. 
Enacted in 1935, the National Labor Relations Act (“NLRA”) was designed, among other things, to protect the rights of employees and employers, including protecting an employee’s right to engage in protected concerted activity in the workplace, such as complaining to other employees about her manager or terms and conditions of employment, without fear of retaliation by his or her employer. The National Labor Relations Board (“NLRB”), an independent federal agency with five members appointed by the president, enforces the NLRA and effectively controls its interpretation and application, subject to limited review by the courts. In less than a decade, the NLRB of the Obama administration extended the protections of the NLRA—in ways some would say were never contemplated by Congress—to employees’ work-related conversations conducted on social media, such as Facebook and Twitter. Those protections apply regardless of whether the employee is represented by a union or not. With this expansion of protection for social media activities, employers must carefully consider the NLRB’s decisions, or else proceed at their own peril.