Compliance Stuff

At a Glance The Policy Week in Review, prepared by Littler’s Workplace Policy Institute (WPI), sets forth WPI’s updates on federal legislation, regulations, and congressional activity affecting the workplace. DOL Announces Proposed Rule on Joint Employment  On April 22, the U.S. Department of Labor’s Wage and Hour Division announced a  Notice of Proposed Rulemaking  (NPRM) on joint employer status under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). The NPRM proposes separate analyses to assess horizontal and vertical joint employment scenarios given the inherent differences between those business relationships. Additionally, the proposal advises that a potential joint employer’s “actual exercise of control” is more relevant than “reserved control” for determining vertical joint employer status. It also proposes to exclude from consideration factors relevant for assessin...

The National Labor Relation Board’s (“NLRB”) joint-employer standard has swung back and forth for nearly a decade, with the newly-appointed Trump NLRB most recently releasing a  final rule  reinstating the 2020 joint employer standard. For private California employers – especially those using staffing agencies, subcontractors, franchise models, or management agreements – the rule determines who can be included in a bargaining unit and who may be liable under a collective bargaining agreement (CBA) . Here’s where things stand and why it matters. The Back-and-Forth History Pre-2015 : The NLRB required  substantial, direct, and immediate control  over essential employment terms to find joint-employer status. 2015 –  Browning-Ferris  Expansion : The Board broadened the test to include  indirect control or even reserved (but unexercised) authority , dramatically increasing joint-employer exposure. 2020 Rule : The Board formally adopted a narrower, employer-...

 The Massachusetts Appeals Court just rendered a decision that significantly broadens when one entity may be found to be a “joint employer” of another entity’s employees under state wage laws. The June 13 decision, coupled with guidance from an earlier decision by the Massachusetts Supreme Judicial Court, establishes a comprehensive framework you can follow to determine whether you might face joint employment trouble. What does your business need to know about the increasing likelihood you could be considered a joint employer – and what are six best practices you can follow to minimize your risk? How Did We Get Here? In Tran v. Jennings Road Management Corp., the Massachusetts Appeals Court agreed that Jennings Road Management Corp. (JRM) was a joint employer of the plaintiff, Sakiroh Tran, a parts advisor at a Boston-area car dealership. The court’s June 13 opinion applied the totality of the circumstances test from a 2021 Supreme Judicial Court opinion that we covered here, which...