News & Analysis

Good news in tight market: NLRB proposes new joint-employer standard

As the labor pool continues to tighten, companies are increasingly fighting to find and keep qualified workers. HR and recruiting professionals know the pain of that fight all too well. A third-party staffing agency can be a great ally in the effort to find and retain good employees. However, the likelihood of being considered "joint employers" by the National Labor Relations Board (NLRB) is a serious concern that has lingered over such relationships.

Are accommodations required only when necessary for an essential function?

The U.S. 5th Circuit Court of Appeals (whose decisions apply to employers in Mississippi, Louisiana, and Texas) recently reversed the dismissal of a case brought under the Rehabilitation Act, which prohibits discrimination in federal employment based on a disability. The standards for determining employment discrimination under the Rehabilitation Act are the same as the standards used to decide cases under the Americans with Disabilities Act (ADA), so the court's decision is instructive for private-sector employers as well.

How to claim paid family and medical leave tax credit

The tax reform law passed late last year contained a little-noticed tax credit for employers that provide employees paid "family and medical" leave and meet certain other requirements. While the IRS hasn't finalized regulations pinning down the specifics of the new credit, it recently issued some helpful guidance. Let's take a look.

Can you keep a secret? How to handle 'confidential' employee complaints

The #MeToo movement just turned one. And while its long-term effects on the workplace remain to be seen, it's commonly expected that increasing numbers of women (and some men) will be informing their employers about problems with sexual harassment.

Leave does not insulate employees from layoff

Q One of our employees has been on short-term disability leave for the past few months. During that time, we have decided to lay off several employees in her job classification because of a lack of work. Is it OK to proceed, or do we need to find a way to return the employee on leave to work?

Agency Action

DOL launches initiative to strengthen H-2B compliance. The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) in September announced a nationwide initiative to strengthen compliance with the labor provisions of the H-2B temporary visa program in the landscaping industry. The initiative includes providing compliance assistance tools and information to employers and stakeholders as well as conducting investigations of employers using the program. The WHD announced that last year, its investigations led to more than $105 million in back wages for more than 97,000 workers in industries with a high prevalence of H-2B workers, including the landscaping industry. A key component of the investigations is ensuring that employers recruit U.S. workers before applying for permission to employ temporary nonimmigrant workers. The H-2B program permits employers to temporarily hire nonimmigrant workers from outside the United States to perform nonagricultural labor or services in the country. The landscaping industry employs more H-2B workers than any other industry.

Governor Brown signs significant #MeToo-inspired bills into law

On September 30, 2018, the deadline for signing or vetoing all pending bills this legislative session, Governor Jerry Brown signed into law several significant bills inspired by the #MeToo movement. The new laws will require California employers to update existing agreements, policies, and procedures.

Can employer be held liable for injuries caused by employee after work hours?

Late one evening in May 2013, Brittini Zuppardo was driving home from her boyfriend's house while talking on the phone with Michelle Halkett. Zuppardo is Esquire Deposition Solution's scheduling manager; Halkett is a court reporter for Esquire. Zuppardo's vehicle struck Jessica Ayon, who was crossing the street outside the crosswalk. Ayon suffered significant injuries. The issue in this case was whether Esquire could be held liable for Ayon's injuries.

Governor Brown approves more employment legislation on familiar subjects

The California Legislature is prolific at passing new laws that affect employers each year. In addition to the employment laws covered in this month's lead article, several other new laws were recently approved by Governor Jerry Brown. It's important for employers to take note of these new laws.

Employer sues employee for filing suit in lieu of demanding arbitration

Many employers in California have arbitration agreements that require employees to resolve any employment-related disputes through binding arbitration rather than in court before a judge or jury. Nevertheless, employees who sign arbitration agreements sometimes attempt to circumvent their agreements by filing lawsuits against their employers in court. When that happens, can the employer sue the employee for breach of the arbitration agreement?