THURSDAY 10:45 11:45 AM DALLAS G Concurrent Session: Risk State of the Union Legal and Legislative Updates Speaker: Fiona Coombe, Director, Legal & Regulatory Research, Staffing Industry Analysts, CCWP
State of the Union
Legal Update Minimum wage Sick leave laws sweeping the nation Joint employer standard for collective bargaining Co-employer s liability for mis-classification Misclassification update Affordable Care Act Ban-the-Box
Minimum Wage Federal minimum wage remains $7.25 (since 2009) 43 states + DC have wage rate equal (14) to or higher (29) than the federal minimum wage; 2 states have a lower wage rate and 5 states have no requirement January 1, 2015 Executive Order 13658 established a minimum wage for federal contractors (non-exempt under FLSA) of $10.10 for 2015 Applied to new contracts entered into after January 1, with a minimum value of $2000 10 states (AZ, CO, FL, MO, MT, NJ, NV, OH, OR, and WA) have wage rates linked to CPI
Paid Sick Leave No federal requirements - yet Family and medical Leave Act (FMLA) requires unpaid sick leave for up to 12 weeks for an employee, or immediate family member, who has worked at least 1250 hours over 12 months at a location where 5o people are employed within 75 miles 4 States (Connecticut, California, Massachusetts and Oregon) 1 county (Montgomery, Maryland) and 19 cities + DC have passed paid sick leave laws 12 States have banned the passing of laws
Joint Employer Standard: NLRB Was the employer a statutory employer with a duty to bargain with a union over temporary workers supplied by a staffing agency? If a common-law employment relationship exists, does the employer possess sufficient control over essential terms and conditions of employment to permit meaningful bargaining? Browning Ferris Industries of Calif., Inc. v Teamsters Local 350, 362 NLRB No.186
Joint Employer Standard: NLRB NLRB majority: Such control need not be exercised directly or immediately and may cover activities such as hiring, firing, discipline, supervision and direction AND dictating the number of workers to be supplied; controlling scheduling, seniority, and overtime; and assigning work and determining the manner and method of work performance. NLRB minority: The new test impermissibly exceeds our statutory authority an ambiguous standard that will impose unprecedented bargaining obligations on multiple entities in a wide variety of business relationships, even if this is based solely on a never-exercised right to exercise indirect control
Co-Employment Liability AEG contracted with Levy to provide food and drink at entertainment centers in California Levy contracted with Canvas to supply independent contractors to sell food and drink California Labor Code section 226.8 imposes civil penalties on any person or employer who engage[s] in the act of voluntarily and knowingly misclassifying [an] individual as an independent contractor. AEG and Levy could be liable as they were aware of misclassification and did nothing to remedy it Noe v. Superior Court of Los Angeles, No. B259570 (Cal. Ct. of App. 2d App. Dist. June 1, 2015)
Misclassification Update As of May 2015 15.5m self-employed in U.S. (US Bureau of Labor Statistics) Department of Labor and IRS Misclassification Initiative: In 2014 DoL recovered $79m in wages for 109,000 employees across 26 states (http://www.dol.gov/whd/workers/misclassification/) Warning signs: - payment by the hour + expenses not per-project - paid vacation / sick leave - type of work is typically done by W2 employees - non-compete agreement in place
Misclassification: Uber Uber A technology platform that enables users.. to arrange and schedule transportation (www.uber.com) Rulings by a California Labor Commissioner and the Unemployment Insurance Appeals Board in California and Florida find drivers are employees not independent contractors (against opposite rulings in 5 other states) Pending class action lawsuits in California: O Connor et al., v Uber Techs., Inc 13-cv-03826; Cotter v Lyft, Inc., 13-cv-04065
Misclassification: Uber Does this extend the test for IC status? What is the definition of control? What is the company s involvement in business operations? Are the workers economically dependent on and integral to the business?
Wage and Hour Update Overtime Notice of proposed rulemaking published July 6, 2015 (80 FR 38515) To update and revise the white collar standard exemption of $455 a week or $23,660 p.a. last updated in 2004 Proposal is to set the level for the standard exemption at the 40th percentile of full-time salaried workers earnings ($921 a week or $47,892 p.a. in 2013) and the highly compensated employee exemption at the 90 th percentile ($122,148 p.a.) with an automatic mechanism to update figures annually in line with wages or the consumer price index Invited comments by September 4, 2015
ACA Update Cadillac tax to repeal or not? Anti-discrimination rules Reporting requirements file returns by February 28, 2016 Advance Premium Tax Credit notices delayed until Spring 2016 but liability for employer-shared responsibility payments may still arise for 2015
Ban-the-Box Over 100 cities and counties 19 States and Washington D.C. Have enacted laws requiring public employers to remove the box from an application form requesting details of criminal conviction history Prohibiting employers from asking for details of an applicant s criminal record until a final interview and/or a conditional offer of employment Generally no restriction on the final hiring decision 7 States apply laws to private employers
Questions
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