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  • Posts by Nancy Cooper
    Owner

    She provides employers with counsel that includes labor negotiations, contract interpretation, employment contracts, noncompetition and confidentiality agreements, as well as guidance on dealing with personnel management ...

A recent case in federal district court in Florida foreshadows the beginning of an expanded reach of Title III of the Americans with Disabilities Act (ADA). As a whole, the Act prohibits discrimination on the basis of disability. Recently, a growing number of lawsuits filed by the Department of Justice (DOJ) and private litigants threatening class action lawsuits serves as a strong caution to businesses operating websites to increase accessibility of those sites to disabled individuals.

Oregon is poised to become the first state in the country to require larger food service, retail and hospitality employers to provide their hourly workers predictable schedules – or to pay the price. This is the second of two major changes to Oregon employment law. An earlier alert discussed the Equal Pay Act.

Starting July 1, 2018, qualifying employers must post a written work schedule for all employees one week ahead. The requirement expands to two weeks in 2020. Employees may decline any work shifts not included in the advance schedule, and employees may ask (only in writing) for additional shifts during the notice window. The Oregon Bureau of Labor and Industries (BOLI) will start enforcing the law January 1, 2019.

The legislature passed Senate Bill 828, known by its champions as the Fair Work Week Act, and the bill is heading to the desk of Oregon Governor Kate Brown for her expected signature. To read more about the details of the Act, read our recent Client Update.

Even as Oregon’s minimum wage jumps by $1.50 in the Portland metro area (fifty cents elsewhere in Oregon), the 2017 Legislature has passed two more worker-friendly bills dealing with equal pay and predictable work schedules. (More on the scheduling law in the next alert.)

Both the courts and the National Labor Relations Board (NLRB) seem to keep changing the definitions of joint employment. It is no wonder this has left employers scratching their head about the situation. The cause for this itch is the analysis differs depending on the law at issue. For example, the Fair Labor Standards Act (FLSA), various state employment laws defining “employees,” common law (guided by the National Labor Relations Act), the Family and Medical Leave Act (FMLA), and workers’ compensation laws all have joint employer doctrines and associated tests that are slightly different from the others.

To demonstrate these differences, we will look at two of the most recent cases that modify the joint employer analysis under both the National Labor Relations Act (NLRA) and the Fair Labor Standards Act (the FLSA). Both these cases define a test – but it is not the same test. Unfortunately, the lesson is that an employer or putative employer will not know whether a person is an employee for the purposes of a particular law without determining first what test should be applied for that law.

On Tuesday, November 22nd, a United States District judge in Texas issued a preliminary injunction that blocks the U.S. Department of Labor (DOL) from implementing a controversial rule that would have expanded overtime protections from going into effect, at least for now.  The pending regulations were scheduled to go into effect on December 1, 2016 and would have more than doubled the salary level required for employees classified as exempt under the “White Collar” exemptions.  The Department of Labor estimated if the new regulations went in to effect more than 4 million workers would now be eligible for overtime.  The salary level is currently $455 per week or $23,660 per year.  The new regulations would have increased that amount to $913 per week or $47,476 per year.

When we last visited this topic, the proposed regulations revising the overtime exemptions were still very new.  The regulations are due to go into effect on December 1 of this year.  There has been legislation introduced to stop them from being implemented and court cases are pending.  This article will remind you of the obligations, answer some additional questions that keep coming up and will bring you up to date on the efforts to stop the regulations from going into effect.

Old computer clocking inThe good news is the long awaited rule on overtime has arrived – finally. The proposed rule goes into effect on December 1, 2016. The quick summary is the changes aren’t quite as bad as everyone feared. The long summary is below. We have broken out the rules into specific talking points to try and make them easier to digest. This does not erase the entire prospect of heartburn, however. The Department of Labor has also developed a page of Questions and Answers on the new rule, which includes a comparison between the old rule and the new rule.

Oregon is making history, once again. The new minimum wage law (signed by Governor Brown on March 2, 2016) brings two new titles: 1.) the first state to implement a tiered minimum wage (the amount paid is dependent upon the location of the business); and 2.) the state with the highest minimum wage.  The passage of the new law has brought a mixed response. The cheers have emanated from the employees and the advocates for a livable wage. The jeers have emanated from businesses trying to figure out how they are going to keep their doors open. While the law is effective immediately, the first increase goes into effect July 1, 2016. So, without further ado, let’s get to the details so you can determine which camp you are joining. 

A key in a lock with house icon on itThe sharing economy requires a new look at work relationships. Many of the business models in the sharing economy are based on individuals being creative and entrepreneurial as they seek to provide services to others. Drivers for companies such as Uber and Lyft share their cars using a license to access software that connects drivers and riders. Residences are rented out on a short term basis using software that markets to prospective travelers on sites like VRBO and AirbnbSnapGoods provides a mechanism for lending or borrowing high-end household items. DogVacay provides host homes to animals whose owners are travelling. TaskRabbit allows others to bid to do your tasks and odd jobs. There is a never-ending list of creative sites looking to maximize the sharing economy. But, when is the line crossed from independent contractors providing services to others to employees of the “hosting” company? This is the question that has been the focus of recent administrative rulings and lawsuits involving Uber.

In Florida, a driver for Uber filed for unemployment after his car was damaged in an accident. As reported in the Miami Herald, the state agency agreed he was an employee for the purposes of unemployment benefits. Meanwhile, in California the Labor Commission also found that an Uber driver was an employee not an independent contractor. Both Uber and Lyft are currently facing lawsuits that are wending their way through the Northern California Courts alleging the same thing. So, what does this mean to other sharing economy ventures outside of the transportation industry, such as the short term rental market?

A quick look at the reasoning of the California Labor Commission is the best place to start in the quest for an answer. Under California law, there is an inference of “employment” if personal services are performed as opposed to business services. The factors considered when determining independent contractor status are:

  • Whether the person performing services is engaged in an occupation or business distinct from the alleged employer;
  • Whether or not the work performed is a part of the regular business of the alleged employer;
  • Whether the alleged employer or the worker supplies the tools and the place where the person performs the work;
  • The amount invested by the worker in the equipment or materials required by the task and whether or not the worker has employees of their own;
  • Whether the service rendered requires a special skill;
  • The kind of occupation and whether the work is usually done under the direction of the alleged employer or by a specialist without supervision;
  • The alleged employee’s opportunity for profit or loss depending on his or her managerial skills;
  • The length of time for which the services are to be performed;
  • The degree of permanence of the working relationship;
  • The method of payment, whether by time or by job; and
  • Whether or not the parties believe an employer-employee relationship is being created.

In the recent California case, the driver claimed she was owed unpaid wages, reimbursement of business expenses, liquidated damages and penalties. Uber disagreed saying she was an independent contractor who had complete control over her schedule, if she even took any riders, and she had to obtain her own license from the state to carry passengers. Uber simply provided the iPhone and the platform for matching riders and drivers. The Labor Commissioner sided with the driver, finding that the type of work performed by the driver was integral to Uber’s business.  Specifically, without drivers such as the Plaintiff, Uber’s business would not exist. Uber was involved in every aspect of the operation. They vet the drivers, control the tools the drivers use, set the price for the trip, accept the cancellation fee without necessarily sharing it with the driver, and discourage the acceptance of tips by drivers because doing so would be counterproductive to the Company’s advertising and marketing strategy. The Labor Commission said all of these activities pointed to an excessive amount of control, thus demonstrating an employment relationship – not that of an independent contractor.

So what does this potentially mean to the rest of the sharing economy, in particular, the short term rental market? Likely, not much, but that could vary based on how the service operates. For example, VRBO provides a web platform and marketing, but the property owner needs to do the majority of the work to get her property on the site, manage the property and deal with reservations.  One of the big distinctions is that the short term rental companies provide a marketing platform for a business service (renting a piece of property) as opposed to a personal service (renting a driver). The risk for such companies is not so much with the property owners, but with the service personnel who provide housekeeping, or maintenance services or other similar services to support the properties. The short term rental company may insulate itself from a claim that the service personnel are its employees if it limits its involvement in the hiring and supervision of such services, leaving that to each individual property owner. If, however, the short term rental company acts more as a property manager, such as Vacasa, then there may be an argument that the service personnel are employees of the short term rental company. No matter the industry, if there is any question regarding the employment/independent contractor status of your workers, it is always best to involve legal counsel sooner rather than later.

Nancy Cooper, member of our Labor and Employment Group and Hospitality, Travel and Tourism practice team, discusses the NLRB's March 2015 report and the importance of reviewing and updating your employee handbook. Thank you for today’s post, Nancy! – Greg

The National Labor Relations BEmployee Handbook and Formsoard (NLRB or the Board) oversees all things union under the National Labor Relations Act (NLRA). Congress enacted the NLRA in 1935 to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy. Even though the NLRB is focused on labor management practices with the unionized workplace, it also has jurisdiction over private sector employers who do not have a union. The Board just has not often exercised that authority – but that has increasingly changed that over the last ten years or so.

The NLRA gives employees the right to act together to try and improve pay and working conditions (“protected, concerted activity”), whether the employees are union or non-union.  These rights are also commonly referred to as Section 7 rights because they are outlined in Section 7 of the NLRA. The NLRB has become more active in enforcing these rights.  Generally, the Board looks to see if actions taken are of a concerted (more than one person) nature intended to address issues with respect to employees’ terms and conditions of employment. Sometimes, though the issue is not the action taken, but the rules that govern the employees’ behavior, such as those in your employee handbook.

On March 18, 2015 the General Counsel of the NLRB issued a report regarding what language in certain employer policies would be considered lawful, and what would not.  When reviewing such rules, the NLRB looks at whether or not the language would act to chill employees from exercising their right to engage in a protected, concerted activity. In other words, they looked at each policy before them to determine if the average reasonable employee would likely read the policy to mean that the employee was not allowed to talk about the terms and conditions of their employment with others, whether that be outside people or other employees. If it could be read to mean that, the policy was unlawful.

So what sorts of things could be read to restrict employees from talking to each other? Just about anything from social media policies to confidential information policies to anti-harassment rules and anywhere in between.  Above all, the context in which a phrase was used seemed to make a difference if a phrase was a close call.  So it is important, as you review your handbook, to not just focus on the words themselves but also the context in which they are used.  Additionally, it is important to remember that a simple disclaimer such as, “Nothing in this policy is meant to prevent employees from engaging (or declining to engage) in discussions about their terms and conditions of employment” may be helpful, but they are not an automatic guarantee that an otherwise unlawful policy will now be lawful.

Some examples of phrases the NLRB found to be problematic (and why) are:

Confidentiality:

  • Do not discuss customer or employee information outside of work, including phone numbers and addresses. (Overbroad reference to “employee information” and the blanket ban on discussion may lead an employee to think they could not discuss the terms and conditions of employment, including the contact information of other employees so that they could all talk.)
  • Discuss work matters only with other Company employees who have a specific business reason to know or have access to such information. Do not discuss work matters in public places. (Broad restrictions that do not clarify they are not meant to impinge on an employee’s rights under the NLRA so an employee could reasonably understand it to encompass wages, benefits and other terms and conditions of employment.)
  • Confidential Information is: “All information in which its (sic) loss, undue use or unauthorized disclosure could adversely affect the Company’s interests, image and reputation or compromise personal and private information of its members.” (Employees have a right to share information that supports their complaints about wages and terms and conditions of employment, and employees may believe they cannot disclose that kind of information because it might adversely affect the Company’s interest, image or reputation.)

Employee Conduct Toward Employer:

  •  Be respectful to the Company, other employees, customers, partners and competitors. (Overbroad and employees could reasonably construe them to ban protected criticism or protests regarding their supervisors, management or the Company in general.)
  • No defamatory, libelous, slanderous or discriminatory comments about the Company, its customers, and/or competitors, its employees or management. (Overbroad and employees could reasonably construe them to ban protected criticism or protests regarding their supervisors, management or the Company in general.)
  • It is important that employees practice caution and discretion when posting content on social media that could affect the Company’s business operation or reputation. (Overbroad because it could reasonably be read to require an employee to refrain from criticizing the employer in public.)

Employee Conduct Toward Another Employee:

  • Do not make insulting embarrassing, hurtful or abusive comments about other company employees online and avoid the use of offensive, derogatory or prejudicial comments. (Overbroad because debate about unionization and other protected concerted activity is often contentious and controversial. Employees could reasonably read such a rule to mean they are limited in their ability to be honest in discussions regarding these subjects.)

There are many more examples of problematic employer rules on various topics in the report. You are encouraged to look again at your employee handbook and employer rules.  If you have any questions, or for more information regarding this report, please feel free to contact me or Nancy. We will be glad to help bring your employer rules back within the safety zone – at least until the next General Counsel report is issued.

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Greg Duff, Editor
Greg Duff founded and chairs GSB’s national Hospitality, Travel & Tourism group. His practice largely focuses on operations-oriented matters faced by hospitality industry members, including sales and marketing, distribution and e-commerce, procurement and technology. Greg also serves as counsel and legal advisor to many of the hospitality industry’s associations and trade groups, including AH&LA, HFTP and HSMAI.

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