NLRB Releases Final Rule on Joint Employment

Many employers contract with PEO companies to outsource their payroll and other administrative duties. Those companies may go so far as to assist in hiring and firing, in addition to running payroll and providing benefits. As a result, in employment litigation, the question can often become: who exactly employed the individual? The company? The PEO? Both?

The answer may not be as obvious as you may think. Whether PEOs and other “secondary” entities should be held responsible for the unlawful actions of the business the employee dealt with day-to-day has been a subject of debate in the legal community for decades. Technically, the term is “joint employment.”

While courts have endeavored to provide guidance as to what exactly makes two entities “joint employers,” the results are not consistent from location-to-location. But today, the National Labor Relations Board (“NLRB”) approved a Final Rule on what makes a “joint employment” relationship, providing some clarity and uniformity to the joint-employment analysis. In discussing the new rule, it stated:

The proposed rule provided an illustrative, rather than exclusive, list of essential terms and conditions of employment. The Board has modified this definition, for the reasons discussed below and in response to comments, to provide an exhaustive list of seven categories of terms or conditions of employment that will be considered “essential” for the purposes of the jointemployer inquiry. These are: (1) wages, benefits, and other compensation; (2) hours of work and scheduling; (3) the assignment of duties to be performed; (4) the supervision of the performance of duties; (5) work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline; (6) the tenure of employment, including hiring and discharge; and (7) working conditions related to the safety and health of employees.

The link to the Rule is here.

Technically, the standards only apply to cases involving the National Labor Relations Act (“NLRA”), a law which, generally speaking, addresses unions in the private sector. Nevertheless, this Rule will no doubt prove highly influential in other areas of employment law, as well.

TLDR: Your employer may be more than just the company for whom you perform work. And, bonus content: under the NLRA it’s also unlawful for employers to tell you not to talk about your wages with your co-workers. The more you know!

Reality v. The Pregnancy Discrimination Act

Despite the Pregnancy Discrimination Act being passed in 1978 and the Florida Supreme Court holding that the Florida Civil Rights Act of 1992 includes protection from pregnancy discrimination, women of childbearing age still have to face major hurdles in the workplace.  Women find themselves wondering whether they will be able to find a job when they are pregnant or if their potential employer believes they may become pregnant.  Many women are passed over for promotions either due to intentional stereotypes about a woman's ability or desire to work hard after having a child, or subconscious beliefs that women won't be able to pull their weight at the office once they have children.  Truthfully, many women find themselves spread thin and riddled with guilt--compelled to give 100% to their families while also giving 100% to their careers.  

The Family and Medical Leave Act of 1993 provides that covered employers (those with 50 or more employees within a 75-mile radius) must provide up to 12 weeks of unpaid leave to covered employees due to the birth or adoption of a child.  This is a summary of the law, but the key point is this: even if you are a covered employee working for a covered employer, you may be entitled to 12 weeks of leave, but that leave is unpaid.  That is, unless the employer voluntarily chooses to pay for the leave time or allows employees to substitute out sick or vacation time for FMLA leave.  For many women, taking 12 weeks off to bond and care for their newborn is highly desireable, but simply unattainable.  In a nation where the vast majority of families live paycheck-to-pacheck, 12 weeks without pay is just not an option.  

I've said it before, and I'll say it again--we claim to be a nation that supports "family values."  But when it comes time to back those values up with money and programs to support mothers and fathers, we fall woefully short.  Mothers either lose their jobs, return to work mere days after giving birth to keep their jobs, or go weeks without pay, only to return to jobs where they will forevermore earn less than their male counterparts because they missed out on key stepping stones to promotions.  Fathers who want to take time to bond with their babies also lose out on pay and benefits during leave, and may even suffer from stigma and ridicule from co-workers and management.  As a society, we should be coming together to encourage men to be active fathers and providing support for mothers who are healing physically while caring for one or more newborns.

And, employers, you are missing out, too.  Parents of young children can be huge assets to companies, using their mutitasking skills to bring fresh perspective to the workplace.  And, let's not forget, just because somebody has had a baby, that does not mean that all of their education, training, and experience has evaporated.  Flexible work schedules and supportive paid time off policies may not be mandatory, but such programs may save companies more money in the long run, since the companies will not have to hire and train new employees to fill the roles of departed parents.

If you believe you have been discriminated against because of a pregnancy or pregnancy-related condition, use our website to set up a phone consultation.  Meanwhile, you can check out this article which gives some interesting information on declining birthrates in the U.S. and employment law. 

Appellate Arguments

Potential clients should be wary of a lawyer who says that your case is a "guaranteed winner."  In the law, there is no such thing as a "sure thing."  Judges rule against even the best advocates and juries can be highly unpredictable.  Fortunately, our system of justice allows for an appellate court to review decisions by judges and verdicts by juries.  This process helps ensure that judges are following the law and jury verdicts have not been the result of errors at trial.  

Not all lawyers are litigators.  Even those lawyers who litigate cases on paper are not always the best trial lawyers.  And even fewer lawyers have the opportunity or desire to argue their cases in front of an appellate court.  Litigating, trying cases, and handling appeals are distinct skills.  

Today, May 16, 2018, Thorpe & Thorpe, P.A. attorney Shaina Thorpe will be presenting an oral argument on behalf of one of our clients.  We have already presented our arguments on paper  and today we get the chance to talk with three appellate court judges in Tallahassee about why the judge's decision should be reversed and our client should have her day in court.  While we do not know when the First District Court of Appeal will issue its opinion on the case, we remain hopeful that the appellate court will send the case back for trial.  

In the meantime, you can watch Ms. Thorpe in action via the court's live streaming website.  There are three cases set for argument today, with the first beginning at 10 am.  So click on the link below, select the Third Floor Courtroom option, and keep an eye out for our attorneys.  We work hard for you--through trial and appeal!

http://www.1dca.org/ustream.html