Updated on January 29, 2016
On January 20, 2016, the United States Department of Labor (“DOL”) released an “Administrator’s Interpretation” of the Fair Labor Standards Act (“FLSA”) with respect to joint employment. A week later, on January 27th, the DOL followed up with a “Fact Sheet” on the Family and Medical Leave Act (“FMLA”) on the same. Applying both the FLSA & the FMLA, and pulling together all of the relevant authorities including statutory provisions, regulations, and case law, the DOL is putting all employers on notice-they may be liable as a joint employer for workers, that they may have assumed weren’t even their own.
As the DOL noted, “protecting workers in fissured workplaces-where there is the possibility that more than one employer is benefiting from their work-has been a major focus . . . in recent years.”
The DOL is effectively putting employers on notice-if you benefit from a worker’s work even marginally, you will be held liable as a joint employer for wage and hour violations.
So what is joint employment, how can you figure out if you are a joint employer, and what will be your responsibilities if you are one?
What is Joint Employment?
The FLSA and the FMLA specifically contemplates joint employers stating that a single worker can be “an employee to two or more workers at the same time.” This is because the FLSA has a broad definition of “employment” with wide application, which is also adopted by the FMLA-effectively “to suffer or permit to work.” Therefore, it is possible for two or more employers to jointly employ a worker by benefit of his or her work, and therefore both be responsible, simultaneously, for compliance with wage and hour provisions.
The two most likely scenarios where an employer may be found to be a joint employer are “horizontal joint employment” and “vertical joint employment”:
Horizontal Joint Employment:
Where two (or more) technically separate but related or associated employers employ an employee and benefit from his or her work, including when:
- The employers have an arrangement to share the employee’s services (e.g. interchange the employee);
- One employer acts in the interest of the other in relation to the employee; or
- The employers share control of the employee, directly or indirectly, because one employer controls, is controlled by, or is under common control with the other employer.
- Two restaurants are organized as two different companies but share operations and share a waitress.
- A farmworker works for two different growers who have an arrangement to share workers.
Vertical Joint Employment:
Where one employer provides labor to another employer and the workers are economically dependent on both employers.
- A staffing agency places a worker at a hotel to do housekeeping.
- A construction working for a subcontractor under a general contractor.
- A security company places security personnel with a retail establishment.
- A private home care agency places an aide in someone’s home.
- A farmworker working with a contractor for a grower.
Are You a Joint Employer?
Under the FLSA and the FMLA, the DOL specifically rejects the more liberal common law control test which many courts have used, which analyzes whether a worker is an employee based on the employer’s control over the worker, in favor of a broader, economic realities test. This is because the DOL notes that the FLSA’s and the FMLA’s definitions are “comprehensive enough to require its application” to many working relationships which, under the common law control standard, may not be employer-employee relationships.
Test for Horizontal Joint Employment:
You may be liable as a joint employer if any of the following apply:
- Both companies have common owners or both companies are partially owned by common owners;
- One company supervises the work of the other company;
- Both companies share clients;
- Both companies have common management;
- Both companies share control over operations (e.g. managing overhead, advertising, managing employees);
- Both company’s operations are intermingled (e.g. for both companies, the same person supervises, schedules and pays employees, regardless of where they are working);
- Both companies have a shared pool of employees they both can draw from;
- Both companies share supervision of the employee;
Test for Vertical Joint Employment:
You may be liable as a joint employer if any of the following apply:
- You direct, control, or supervise (even indirectly) the employee’s work;
- You have the power (even indirectly) to hire or fire the employee, change employment conditions, or determine the rate and method of pay;
- You have a permanent, long-term, or full-time relationship with the employee;
- You have an employee who performs repetitive work or work requiring little skill;
- The employee’s work is integral to your business;
- Is employee is working on your premises;
- You perform functions for the employee typically performed by employers, such as handling payroll or providing tools, equipment, or workers’ compensation insurance, or, in agriculture, providing housing or transportation.
What Are the Responsibilities of Joint Employers?
Under the FLSA, joint employers (whether horizontal or vertical) are responsible, both jointly and individually, for compliance with wage and hour provisions. As such, each of the joint employers must ensure:
- Employees receive all employment-related rights (including payment of at least the federal minimum wage for all hours worked and overtime pay at not less than one and one-half the regular rate of pay for hours worked over 40 in a workweek, unless an exception or exemption applies).
- Employee hours in a workweek are combined to determine if the employee worked more than 40 hours and is due overtime pay.
Under the FMLA, where a joint employer relationship exits, in most cases one employer will be the primary employer while the other will be the secondary employer. Determining which of the joint employers is a primary or secondary employer depends upon the particular facts of the situation. Factors to consider include:
- who has authority to hire and fire, and to place or assign work to the employee;
- who decides how, when, and the amount that the employee is paid; and,
- who provides the employee’s leave or other employment benefits.
The primary employer is responsible for giving required FMLA notices to its employees, providing FMLA leave, maintaining group health insurance benefits during the leave, and restoring the employee to the same job or an equivalent job upon return from leave. The primary employer is prohibited from interfering with a jointly-employed employee’s exercise of or attempt to exercise his or her FMLA rights, or from firing or discriminating against an employee for opposing a practice that is unlawful under the FMLA. Primary employers must keep all records required by the FMLA with respect to primary employees.
A primary employer must meet all of its obligations under the FMLA even when a secondary employer is not in compliance with the law or does not provide support to the primary employer in meeting these responsibilities.
The secondary employer, whether an FMLA-covered employer or not, is prohibited from interfering with a jointly-employed employee’s exercise of or attempt to exercise his or her FMLA rights, or from firing or discriminating against an employee for opposing a practice that is unlawful under the FMLA.
The secondary employer is responsible in certain circumstances for restoring the employee to the same or equivalent job upon return from FMLA leave, such as when the secondary employer is a client of a placement agency and continues to use the services of the agency and the agency places the employee with that client employer. Secondary employers must keep basic payroll and identifying employee data with respect to any jointly-employed employees.
A covered secondary employer is also responsible for compliance with all the provisions of the FMLA for its regular, permanent workforce.
All employers should carefully evaluate any potential joint employment scenarios now, and seek legal counsel as required, before they incur costly liabilities.
Watch any televised sporting event, and at the end of the game the star player from the winning team will say she or he’s glad they won, but she and the team have to get better for the next game. Although it’s become a sports cliché, professionals in every walk of life want to get better at his or her job. In fact, as attorneys in Hawai`i, we are required to complete 3 hours of Mandatory Continuing Legal Education each year, so that we can improve and stay up-to-date on the latest legal trends.
With that in mind, a recent presentation of the Appellate Section of the Hawaii State Bar Association by First Circuit Court Judge Karen Nakasone, an experienced criminal law trial and appellate practitioner before she joined the bench, offered eight useful tips for lawyers practicing in Hawai`i’s Intermediate Court of Appeals and Supreme Court.
1) ICA judges have a heavy caseload and a limited amount of time for each case, so when arguing in writing and orally, get to the point right away and be clear, focused and organized. Don’t use the entire briefing page limit if you don’t have to.
2) The appellant’s statement of points of error is critical in helping the ICA understand the issues on appeal. Strictly comply with the appellate court rules on briefing. Make sure that each point is supported by law and by citations to the record on appeal. Select points of error carefully, rather than peppering the brief indiscriminately with a large number of points of error.
3) Your integrity and reputation before the courts are key. The advocate is a “specialist” about the case and the presiding judges are “generalists.” Use oral and written argument to educate the court but do so with integrity. Do not misrepresent or overstate the facts or law. One false or uncivil comment can impact your credibility and cause longterm harm to your reputation with judges. Remember, the judges communicate with each other about practitioners and “have long memories.”
4) The Hawaii Supreme Court’s Commission on Professionalism recently sought comment from lawyers on “the use and effectiveness of the Guidelines of Professional Courtesy and Civility for Hawai`i Lawyers.” Regardless of the guidelines’ future, Judge Nakasone’s strong advice was to read and follow the civility guidelines.
5) Inquiring minds at the presentation wanted to know: how best to cite to the record on appeal? Now that record on appeal is online, citing to the docket number (“Dkt.”) and page number is all that the law clerks and judges need. Using ”ROA___” was helpful when the record was a hard copy and needed to be thumbed through to locate the information in question. Nowadays, clicking on the docket number easily takes the reader to the online document.
6) When arguing before the Hawai`i Supreme Court in writing or orally, argue as if you were making your case to an advocate and tailor your arguments to the swing vote justices. This helps the justices use your key points to persuade their colleagues on the court when they are deciding your case. Remember, the state’s High Court has the ability to make new law, unlike ICA, which is bound by existing law.
7) Before oral argument, practicing in front of a mock judge panel of one’s colleagues, more than once if possible, is important. Then, when you are in court, get to the point quickly, and keep an eye on the clock so you hit all your strong points and have plenty of time for anything else you’ll need to present or answer.
8) Don’t forget to consider the rule allowing requests to transfer a case on appeal directly to the Hawai`i Supreme Court if the case involves novel legal issues. There are time limits, though: “no earlier than 10 days after the filing of the record on appeal and no later than 20 days after the last brief is filed or could have been filed.” Judge Nakasone suggested that using the direct transfer procedure in an appropriate case would save time.
Following these tips should improve your case on appeal and help the judges appreciate your advocacy.
The Ninth Circuit has ruled that copyright holders must consider fair use before demanding that their content be removed from services like YouTube. The ruling is courtesy of an eight-year, and counting, legal battle over a mother’s home video of her baby dancing to Prince’s “Let’s Go Crazy” which was posted on YouTube and which the copyright police at Universal Music demanded be taken down. The case will now proceed to trial.
Although the ‘dancing baby’ video was reposted and not taken down by YouTube after the mother sent a counter-notice, the Electronic Frontier Foundation, an internet user advocacy group, brought suit in 2007 to argue that the ‘dancing baby’ video should never have been subject to a takedown demand because it was protected by fair use. Fair use permits non-owners to use copyrighted material for certain purposes like commentary, parody, criticism or news reporting. EFF claimed that copyright holders should not be allowed to send take-down notices which ignore fair use and free speech.
The case became a battle over the burdens of takedown notices on Silicon Valley service providers, which receive them by the tens of millions each month, and traditional media which typically sends them as part of organized content protection programs. Google, Twitter and Tumblr filed a brief in support of the mother and EFF; while the Motion Picture Association of America and Recording Industry of America took Universal’s side. The MPAA and RIAA argued that subjecting copyright holders to liability for failure to analyze fair use before sending a takedown notice would “fundamentally alter” the notice-and-takedown system and impose unwarranted burdens. Google, Twitter and Tumblr argued that unfounded takedown notices impose unwarranted burdens on service providers and the free exchange of ideas.
The three judge panel of the Ninth Circuit considered these respective burdens and held that: “Copyright holders cannot shirk their duty to consider—in good faith and prior to sending a takedown notification— whether allegedly infringing material constitutes fair use, a use which the DMCA plainly contemplates as authorized by the law. That this step imposes responsibility on copyright holders is not a reason for us to reject it.” In so ruling, the Court sided with the service providers and internet users. Even though it is a greater burden for copyright owners, fair use must be considered in the notice-and-takedown process. However, the Lenz opinion also recognized that a copyright owner’s use of automated processes or computer algorithms to identify infringements “appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA’s requirements to somehow consider fair use.” This carve-out is an important protection for large copyright owners which must police the entire internet for infringing content.
If you believe that your content has been infringed, you can avail yourself of the Digital Millennium Copyright Act and ask that your content be taken down from an internet service provider’s site. But after Lenz, you cannot ignore or neglect to consider fair use. If you do, you can be liable for damages under Section 512(f) of the DMCA, even if they are only nominal.
This portion of the post was originally published by the ABA Section of Litigation, LGBT Litigator Committee, News & Developments Website
Although the litigation regarding Rowan County Kentucky clerk Kim Davis has generated substantial national media coverage, largely missing is a more detailed description of the legal proceedings, which we attempt to offer here.
The ACLU of Kentucky and a Kentucky law firm filed the case on July 2, 2015, on behalf of a number of plaintiffs after clerk Kim Davis refused to issue marriage licenses in wake of theObergefell decision. The case has been styled Miller et al. v. Davis et al., 0:15-cv-00044-DLB (E.D. Ky.). At the time of filing, the plaintiffs also moved for a preliminary injunction to compel Ms. Davis to issue the marriage licenses.
The court held a number of hearings and received numerous rounds of briefing during July and early August. Ultimately, the court issued the preliminary injunction on August 12, 2015, and Ms. Davis immediately appealed. Ms. Davis moved to stay the injunction pending appeal. The court refused the motion, but issued a temporary stay in order to allow the Sixth Circuit to address the stay issue. The temporary stay lapsed on August 31, 2015, after the Sixth Circuit denied the motion to stay made at the appellate level. The district court refused to extend its temporary stay pending an appeal to the Supreme Court.
While the litigation over the plaintiffs’ preliminary injunction was ongoing, Ms. Davis filed a third party complaint and a motion for preliminary injunction of her own on August 7, 2015. Her case is against the governor of Kentucky, who has ordered her to issue marriage licenses. The court stayed Ms. Davis’s motion for preliminary injunction pending the appeal of the court’s order granting the plaintiffs’ motion for preliminary injunction. Ms. Davis appealed the order staying her motion for preliminary injunction and then filed another motion for preliminary injunction on September 2, 2015, against the governor, this time asking for a preliminary injunction while the appeals were pending.
In the meantime, Ms. Davis has indicated that she will not abide by the court’s injunction requiring her to issue marriage licenses. Accordingly, on September 1, 2015, the plaintiffs filed a motion asking the court to hold her in contempt and requesting monetary sanctions (as opposed to incarceration) sufficient to compel her to comply with the court’s injunction. The court held a hearing on that motion on September 3, 2015. After hearing witnesses and argument, the court held Ms. Davis in contempt of court and ordered her “remanded to the custody of the United States Marshall pending compliance of the Court’s Order of August 12, 2015, or until such time as the Court vacates the contempt Order.” The court then denied Ms. Davis’s motion to stay enforcement of the court’s contempt order and denied her motion to certify the contempt order for appeal.
The seemingly endless pages of the Affordable Care Act contain a short but potent section in which Congress expressed a novel commitment to nondiscrimination in the provision of healthcare. Its scope has been left largely untested, until recently.
Section 1557, codified at 42 U.S.C. 18116 and entitled “Nondiscrimination,” is found within the unwieldy “miscellaneous” subchapter of the ACA. It directs that an individual may not “be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance…”
The statute incorporates several well-known anti-discrimination laws: Title VI (prohibiting discrimination on the basis of race, color and national origin); Title IX of the Education Amendments of 1972 (sex); the Age Discrimination Act (age); and Section 504 of the Rehabilitation Act (disability). You might reasonably assume, then, that Section 1557 imports the standards from these four existing laws. With regard to gender identity, that would be the standard under Title IX.
According to one federal court, however, you would be wrong. The first federal court to issue an opinion under Section 1557 concluded that, rather than merely linking to Title IX, the statute has a life of its own. Rumble v. Fairview Health Services, No. 14-cv-2037, 2015 WL 1197415 (D.Minn. March 16, 2015).
In Rumble, the U.S. District Court for the District of Minnesota denied a motion to dismiss a complaint alleging that a hospital discriminated against a transgender man in the provision of his healthcare services. The court held that Section 1557 recognizes a cause of action for discrimination based on transgender status, i.e., it recognizes transgender people as a protected class.
The case dealt with a transgender man’s claim that he was discriminated against when his mother brought him to the emergency room for severe pain and a fever. The complaint alleged that upon arrival, the plaintiff encountered inappropriate and hostile treatment with regard to his gender, that his care and treatment were unreasonably delayed, and that patients with less severe medical conditions were treated much more quickly.
Taking these allegations as true, the court recognized a valid claim. In doing so, the court reached beyond the traditional scope of Title IX, which prohibits discrimination based on “not conforming to gender stereotypes and expectations,” but does not clearly protect individuals who are discriminated against for transgender status. See id. *7.
The Rumble court concluded that Section 1557 provides broader protection than Title IX. To get there, it reasoned that the statute is ambiguous insofar as each of the four incorporated civil rights laws utilize different standards for liability. Id. *10. Due to this ambiguity, the court looked to agency interpretation, specifically, the Office of Civil Rights at the Department of Health and Human Services (OCR), which at the time, had yet to promulgate any rules or regulations interpreting Section 1557.
OCR had issued an opinion letter, in which then-Director Leon Rodriguez stated that Section 1557’s “sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and will accept such complaints for investigation.” Letter from Leon Rodriguez to Maya Rupert, July 12, 2012 (OCR Transaction No. 12-000800).
The court found the reasoning in the letter persuasive, and concluded that despite the lack of clarity in Title IX, Section 1557 protects plaintiffs who allege discrimination based on gender identity. The court rejected defendants’ argument that strict Title IX standards should apply:
[L]ooking at Section 1557 and the Affordable Care Act as a whole, it appears that Congress intended to create a new, health-specific, anti-discrimination cause of action that is subject to a singular standard, regardless of a plaintiff’s protected class status….
Reading Section 1557 otherwise would lead to an illogical result, as different enforcement mechanisms and standards would apply to a Section 1557 plaintiff depending on whether the plaintiff’s claim is based on her race, sex, age, or disability.
At the time Rumble was decided, there was not much agency guidance for the scope of Section 1557 as to transgender people. That may be changing; on September 4, 2015, the U.S. Department of Health and Human Services released a proposed rule that expands Section 1557 to include discrimination based on gender identity as a form of sex discrimination. The proposed rule would leave in place exemptions for religious organizations.
There is a possibility, then, that Section 1557 sweeps more broadly than prior Title IX protections. Whether Rumble could survive on appeal is yet to be determined. But if upheld, in combination with the new proposed rule, Section 1557 may pack more punch than any civil rights law to date.
|While more information continues to develop, the recent live television execution by a former TV station employee provides some important reminders regarding workplace violence prevention.A quick summary of what is known:Vester Flanagan, a former reporter for WDBJ in Moneta, Virginia, killed a reporter and cameraman while they were in the midst of a live interview. In addition to the feed being shown by the station, Flanagan wore a body camera, and he later posted his killing video on his Facebook and Twitter accounts.Flanagan had a long history of problematic employment, and was terminated by at least two television stations, once in 2000 and once in 2013 by WDBJ. His most recent termination resulted from coworker fears about his pattern of verbal abusiveness and threatening gestures. He was perceived as having anger management issues, inability to take criticism, and as one who took events too personally. He had a history of road rage as well as perceiving himself as victimized by discrimination. When he was terminated in 2013, police were called to remove him from the station, and there was a lock-down because of concerns that he might be violent.
Some important reminders regarding best practices in workplace violence prevention:
Hire Carefully: Make sure your organization does a thorough background check and preemployment assessment. Consider any gaps in employment as a red-flag in need of consideration. Allegations of mistreatment by past employers/coworkers could indicate that the candidate is the source of the problem.
Don’t Allow Entitlement to Develop: Have early indications of problems with a new employee? Consider cutting ties sooner rather than later as the longer someone stays with the organization, the more anger can develop when termination eventually occurs.
Consider On-the-Job Red-Flags: Pre-incident indicators can include anger management issues, continual complaints and grievances, inability to benefit from constructive criticism, odd behavior, feeling victimized and that others are “out to get” them. In the Flanagan example, he appeared to be a “Grievance Collector,” i.e., one who never forgets about past perceived injustices.
Structured and Compassionate Termination: While it may not be possible, consider going the extra mile to make sure the Grievance Collector has reason to look forward to new opportunities, rather than back with anger. Outplacement counseling is but one method to consider.
Have a Workplace Violence Prevention Team. With experts from various disciplines to help guide your thinking when dealing with an employee, vendor, or known-outsider who is raising concern.
Continue to be Vigilant. The WDBJ case illustrates that a former employee can be a grave danger even years after being terminated.
And finally, please do have a Workplace Violence Policy.
As an employer, you may be on a collision course with the National Labor Relations Board (“NLRB”), if like most employers, you haven’t recently updated your employee handbook.
Recently, the NLRB’s General Counsel, Richard F. Griffin, Jr., dropped a wide-reaching memorandum, which applies to all employers-regardless if their workforce is unionized-and which calls into question nearly every employer’s employee handbooks.
According to the NLRB, employers are not in compliance with the law, if your employee handbook has standard provisions, which the agency says interfere with your employees’ rights to organize, such as:
- Don’t make disparaging comments about the company,
- Be respectful to your managers,
- Be respectful to your co-employees,
- Don’t say anything bad about the company on social media, or
- Don’t use the company’s copyrights, or its logo.
And, the NLRB’s memo goes much, much further-touching nearly every standard provision used by most employers in their employee handbooks.
Employers should take heed and update their employee handbooks immediately, to avoid the many risks of non-compliance, including exposure to costly lawsuits.
We have dissected the NLRB’s memorandum, and Alston Hunt Floyd & Ing is here to assist our clients to be fully compliant with its directives and to avoid any lawsuits.
We have all been there. We arrive in court on a hearing and the court’s inclination is against us. Or an objection is made to the admissibility of an important item of evidence at trial and the objection is granted. How do we effectively handle such situations? While there are no guarantees and the battle to change a judge’s mind can be daunting, it is not impossible. In this effort it is often good to use as a guide three words: respect, listen and persist.
Often the effort to change a judge’s mind is undermined as a result of form rather then substance. For example, young lawyers as well as more experienced ones seem to panic when things are not going their way feeling the need to urgently make their points while talking over the judge. This is not only a sign of disrespect for the court but also the court’s staff, the court reporter. The clear message sent to the judge by such conduct is that you have neither heard nor care to hear what he has to say. Even patient judges will respond with disinterest to your argument under such circumstances. It is important to acknowledge the judge’s position, perhaps by repeating and reframing what he said, and then, and only then, suggesting why he may have overlooked an aspect of your motion or may not have considered an aspect of the applicable evidence or law. By demonstrating respect for the judge and carefully considering his position as well as demonstrating an interest in assisting the court in getting his decision right you provide yourself with a much better chance of changing his mind.
I can best illustrate persistence by an experience I had some years ago trying a case against a funeral home and mortuary. My client was the only child of his deceased mother who had passed away after a long illness. Providing a respectful burial for his mother, who raised him as a single parent, was very important to him. Unfortunately, the funeral home and mortuary did not approach their task with the same care and respect. They failed to properly communicate the size of the casket resulting in the grave not being dug wide enough for the casket. This discovery was made at the gravesite on the day of the burial. Efforts to have the funeral home take back the casket failed. Accordingly, the casket had to be stored in an unrefrigerated shed at the mortuary for a day. When the burial recommenced and the casket was removed from the shed my client saw ants emerge from the interior of the casket. He opened the casket and saw ants emerge from his mother’s nose and mouth and screamed. A family member caught all of this on videotape. When I sought to introduce the videotape at trial the judge refused agreeing with the defense that the video was staged, cumulative and more prejudicial then probative. I persisted. With every witness at the scene I sought introduction of the tape with the same result, motion denied. That was until my client’s wife testified. She poignantly described the relationship between her husband and his mother, the importance of this event to him, and how he meticulously planned for the same, as well as the horror of ants emerging from his mother’s orifices. I could detect a tear in the judge’s eye during her testimony. I renewed my motion, which was granted over the defense attorney’s objection. I won the case.
The take away is that if you are to have any chance of changing a judge’s mind it is important to remember to show respect for the judge by listening to him, demonstrating by your response that you have heard him, and then, and only then, seeking to emphasize areas of your case that he has perhaps overlooked or minimized. If you have received an adverse ruling on an important issue, you must search for new and creative ways to raise the issue again before the court by way of a motion for reconsideration or a renewal of your motion to introduce the evidence. Do not simply rehash old arguments, but consider presenting the issue in a new and compelling way calculated to capture the court’s imagination.