Call: 410-522-1020

News and Resources

MY DAUGHTER IS A HERO

            I am proud of the work I do as an employment lawyer.  People care deeply about their jobs.  Business owners invest their time, sweat, and money to grow their businesses.  Employees rightly see their work as an extension of themselves.  When I draft an employment agreement or employee handbook, I feel good that I am helping people’s work life go more smoothly.  Even on a good day, though, I don’t think I’m a hero.             But my daughter is.             My oldest daughter, Atara Raizel, is a wife and a mother of three young children.  That already elevates her to idealized status.  But she also is a doula – a trusted birth coach who assists women in developing their ideal vision of how they want their births to be.  Doing this work under the best of circumstances requires all the skill and sensitivity that you imagine it would – and she has all that.              But imagine the following.  On your way to assist a first-time mother with her birth, you receive a call from a surprisingly calm husband saying that he and his wife are at home, and that his wife’s contractions now are consistently a minute apart and a minute long.  He informs you that he is about to put his wife in the car, and he intends to meet you at the hospital.  That makes sense, doesn’t it?  It would to me.             That’s because we’re not heroes.             My daughter knew that this did not make sense.  Immediately and firmly she instructed the bewildered husband not to even think about putting his wife in the car – unless he wanted to give birth on the side of the highway.  You are about to have a baby at home, she informed him.  And then my daughter proceeded to calmly talk this young couple through the process of having a baby at home.  Call the paramedics.  Place a sheet on the floor.  Breathe with me.  Are the paramedics there yet?  Yes, I can hear them.  Guys!!  Stop talking!!  They are about to have a baby!  Listen to me and follow my instructions.  Got it??  Mom, don’t push; let your body do the work!  That’s it.  You’ve done it.  No, guys – DO NOT clamp the cord!  That’s the baby’s oxygen.  While driving 65 mph on the way to a birth that she was conducting en route, my daughter conducted the miracle of birth with a room full of EMTs and first-time parents – resulting in a beautiful baby girl.  Hearing about my daughter in action, literally saving lives, having newborn babies named after her, I’ve learned two things.  First, the world still has heroes.  Second, the cape is optional.

Read More »
Bruce Luchansky Dec 17 No Comments

What Makes an Employment Termination a “Wrongful Termination”?

            There is a lot of confusion about when and why employers are allowed to fire their employees.  From the employee’s side, most employees believe (incorrectly) that if an employer can’t prove that the employee did something “wrong,” then the employer is not allowed to fire them.  From the employer’s side, most employers aren’t quite sure when they can fire employees, so many employers are tempted to shade the truth and shift from the “real” reason for the termination to a reason that sounds less questionable.              No wonder employees and employers often don’t see eye to eye when employment comes to an end.             Here’s the scoop.  Employers are legally allowed to fire most employees any time they want, for any reason they want.  That means that even when an employer can’t prove that a cashier stole the money that was missing from the register, or even when the technician who wrecked the company truck swears it was the other driver’s fault, the employer can decide to fire the employee.  An employer is entitled to decide whether its employees are contributing to the business in the way the employer needs, or whether they are not.  Just as an employee can quit whenever they want (bored, better job, unreasonable supervisor), a company can fire an employee whenever it wants (poor performance, poor attendance, the boss’s son needs a job and it happens to be yours).               So, when is a termination “wrongful”?  An employer can’t fire an employee for an “illegal” reason.  Which reasons are illegal?  Ah, there’s the rub.  Here’s just a partial list of reasons an employer can’t fire an employee: (1) discrimination – firing employees because of their protected characteristics, such as race, sex, national origin, disability, and age; (2) concerted activity – firing employees because they discussed their wages or other conditions of employees with co-workers; (3) overtime pay retaliation – firing employees because they complained about not being paid overtime wages; and (4) in violation of Maryland public policy – firing employees for a reason that the State of Maryland says is protected as a matter of public policy.  One example is firing employees for refusing to do something that might be a violation of Maryland law, such as firing an apartment manager for refusing to go into a tenant’s apartment and go through the tenant’s private papers.             Navigating the world of wrongful termination is complicated and having an experienced navigator on board is crucial.  At Luchansky Law, we guide clients through the jumble of laws of employment termination, we solve issues when questions arise about wrongful termination, and we advocate for clients who are involved in a dispute over the termination of employment. 

Read More »
Bruce Luchansky Nov 15 No Comments

Employees are Discovering a New Secret Weapon Against Employers: Concerted Activity

            Almost every employee who ever has been fired believes he or she has been wrongfully terminated.  The good news for most employers is that in Maryland, it is very hard for an employee to win a lawsuit for something called “wrongful discharge.”  Since Maryland is an at-will state, employees who want to file a lawsuit against their employers either must prove unlawful discrimination, or that the company fired them in violation of some declared public policy of the State of Maryland (such as refusing to engage in illegal activity).  That’s usually hard for employees to do. The bad news for employers is that there is another avenue that employees can pursue that they are beginning to learn about and which poses a much greater risk to employers.  Under Federal law, employees may get together to improve their wages or other conditions of their employment.  Something as simple as two employees talking about how much they are paid is legally protected.  The law calls this the right to engage in “concerted activity.”  Any employer who interferes with that right can be in big trouble.  For example, many employers believe that how much money their employees make is confidential information.  Some of these employers even have rules that prohibit employees from sharing that information with others, rules that they proudly point to in their employee handbooks.  Beware.  The law says that employees have a legally-protected right under the National Labor Relations Act to discuss their wages and the conditions of their employment.  Any interference with those rights, for example, by imposing discipline or by terminating employment, can be a violation of an employee’s rights. Employees who believe that their right to engage in “concerted activity” has been violated may file an “unfair labor practice” charge with the National Labor Relations Board.  Don’t think that the NLRB only deals with unions.  More and more, the NLRB is enforcing laws against employers who are not unionized.  And if a company has fired an employee for engaging in concerted activity – such as complaining to management on behalf of themselves and others about work policies – the NLRB can be ruthless in enforcing these rules.  An employer can be forced to reinstate the employee, pay the employee back pay, post a notice admitting to violations of federal law, and even mail these notices to the company’s other employees.  In short, it is essential that employers know when they are permitted to fire employees and when they may not.  A quick call to your workplace lawyer before firing employees can save a lot of time and money from hidden legal land mines like this one. 

Read More »
Bruce Luchansky Oct 19 No Comments

The 411 on Overtime Pay

            In the past two years, employees have recovered an estimated $1.2 billion from filing claims against their employers for unpaid wages.  Claims for overtime pay are near the top of that list.  But many employees – and employers, too – are confused about the overtime laws.  Who gets overtime pay, and how much are they supposed to get?  Here’s the 411 on this hot topic.             Most employees who work more than 40 hours in a work week must be paid time-and-a-half for all hours above 40.  So, an employee making $10 an hour who works 50 hours in a work week must be paid $550 ($10 per hour x 40 hours = $400, plus $15 per hour x 10 hours = $150).  Many employers don’t realize how few exceptions there are to this rule.             In most cases, employers only are allowed to avoid paying overtime to employees who both: (1) are paid a regular salary, not an hourly wage; AND (2) are either high level administrative employees or managers who supervise at least 2 full-time people.  Very few employees usually meet these requirements – which means that most employees are supposed to be paid for their overtime.  Moreover, the employer is required to keep track of employees’ time worked and make sure they get paid time-and-a-half for their overtime hours.             What are the most common ways that employers violate the overtime laws?  Many employers tell employees they have to write down “8 hours” every day, regardless of how many hours they worked.  Other employers say they don’t pay for overtime but give “comp time” instead.  Others say that they don’t have to pay overtime to any employee who gets a salary, even if they are not high-level administrators or managers.  These all are violations of the overtime laws.              For most employees, overtime is a legally-protected right.  Be vigilant about enforcing it.

Read More »
Bruce Luchansky Oct 10 No Comments

Federal Court Denies Plaintiffs’ Motion to Equitably Toll Statute of Limitations in FLSA Claim

In Dolphus v. Servis One, Inc., No. GLR-16-1075, 2018 BL 277246 (D. Md. Aug. 02, 2018), Plaintiffs filed suit against Servis One, Inc. D/B/A BSI Financial Services (“Servis One”) on behalf of themselves and similarly situated current and former Servis One asset managers, alleging that they consistently worked more than forty hours per week, but Servis One failed to pay them overtime.  Plaintiffs sought recovery of wages under the Fair Labor Standards Act, 29 U.S.C. §§ 201 , et seq. (2018) (“FLSA”).  On June 10, 2016, Plaintiffs filed a Motion for Conditional Certification to Facilitate Identification and Notification of Similarly Situated Employees.  The Court denied the Motion on August 24, 2016.  The Court also granted Servis One’s request to conduct limited discovery to determine whether Plaintiffs were similarly situated enough to warrant a collective action. On November 14, 2016, Plaintiffs filed a Line reinstating their Motion for Conditional Certification. The Motion ripened on December 9, 2016. The Court granted Plaintiffs’ Motion for Conditional Certification six months later on June 8, 2017.  Although the Court conditionally certified the collective action, Plaintiffs could not contact other potential class members because the parties disputed the notice time-period and the language of the opt-in form. On September 8, 2017, the Court extended the notice period from August 1 to October 2, 2017, and adopted Plaintiffs’ proposed opt-in form. Plaintiffs contended that the Court’s delayed ruling on two issues—the Motion for Conditional Certification and the approval of an opt-in form for other similarly situated employees—extinguished many of purported Plaintiffs’ claims, due to the two-year statute of limitations. Plaintiffs now request the Court toll the statute of limitations on February 1, 2017, less than two months after the parties fully briefed the reinstated the Motion for Conditional Certification. Equitable tolling of the statute of limitations is a “guarded and infrequent” remedy appropriate under “quite narrow” circumstances. Chao v. Va. Dep’t of Transp., 291 F.3d 276 , 283 (4th Cir. 2002). Equitable tolling is only available when: (1) defendants’ “wrongful conduct” prevented plaintiffs from asserting their claims; or (2) “extraordinary circumstances beyond plaintiffs’ control made it impossible to file the claims on time.” Cruz v. Maypa, 773 F.3d 138 , 145(4th Cir. 2014) (quoting Harris, 209 F.3d at 330 ). Furthermore, equitable tolling is not permissible “where the claimants failed to exercise due diligence in preserving their legal rights.” Chao, 291 F.3d at 283 (quoting Irwin v. Dep’t of Veterans, 498 U.S. 89 , 96 ,111 S. Ct. 453 , 112 L. Ed. 2d 435 (1990)). Here, Plaintiffs argued that delays in the Court’s rulings on the relevant Motions constituted extraordinary circumstances outside of their control, which prevented Plaintiffs from filing their claims in time. The Court disagreed. Under the FLSA, filing a complaint does not automatically toll the statute of limitations for all similarly situated employees. Some potential plaintiffs’ claims may expire before they receive notice of the collective action, even when a court grants class certification early in the litigation. Harbourt v. PPE Casino Resorts Md., LLC, No. CCB-14-3211 [2017 BL 18314], 2017 U.S. Dist. LEXIS 9229 , [2017 BL 18314], 2017 WL 281992 , at *3 (D.Md. Jan. 23, 2017). The fact that an employee’s FLSA claim expires before he or she received notice of a collective action is not in itself extraordinary, but rather an anticipated result of the statutory framework. Rarely have district courts in the Fourth Circuit concluded that litigation delays were an extraordinary circumstance that warranted equitable tolling. See, e.g., Harbourt, [2017 BL 18314], 2017 U.S. Dist. LEXIS 9229 , [2017 BL 18314], 2017 WL 281992 , at *3 (finding the four-month delay in granting a motion to dismiss and subsequent appeal was not an extraordinary circumstance); LaFleur v. Dollar Tree Stores, Inc., No. 2:12-cv-00363, [2012 BL 257803], 2012 U.S. Dist. LEXIS 143514 , [2012 BL 257803], 2012 WL 4739534 , at *7 (E.D.Va. Oct. 2, 2012) (denying equitable tolling where motion for conditional certification was still pending after three months); MacGregor v. Farmers Ins. Exch., 2:10-CV-03088, [2011 BL 183542], 2011 U.S. Dist. LEXIS 75872 , [2011 BL 183542], 2011 WL 2731227 , at *2 (D.S.C. July 13, 2011) (denying equitable tolling because the four-month time period in which a motion to dismiss was pending did not constitute an extraordinary circumstance). Courts have only found extraordinary circumstances when the delay was unusually lengthy. See, e.g., Owens v. Bethlehem Mines Corp., 630 F.Supp. 309 , 312-13 (S.D.W.V. 1986) (allowing equitable tolling where motion for class certification was pending before the court for over a year). Here, granting the Plaintiffs’ Motion for Conditional Certification six months after a full briefing did not present an unusual or unexpected delay. Rather, the six months the Motion was pending before the Court was a typical length of time for litigation in the District of Maryland. Additionally, the Court resolved the parties’ good faith disputes related to the notice and opt-in form as those disputes ripened for the Court’s review. Furthermore, Plaintiffs did not seek equitable tolling until September 15, 2017— seven and one-half months from when they now assert their claims should be tolled. Plaintiffs’ belated request reveals both the ordinariness of the circumstances when they arose in February and Plaintiffs’ lack of diligence in preserving their claims. The Court therefore concludes that the six months the Motion was pending does not constitute a sufficiently extraordinary circumstance to “supplant the rules of clearly drafted statutes.” Chao, 291 F.3d 276 at 283 (quoting Harris, 209 F.3d 325 at 330 ). Without more compelling circumstances or wrongdoing on Servis One’s part, any prejudice potential plaintiffs suffered is not enough to warrant this equitable measure. Accordingly, the Court denied the Motion for Equitable Tolling of the Statute of Limitations.    

Read More »
Bruce Luchansky Aug 20 No Comments

Maryland Federal Court Allows Plaintiff’s Retaliation Claim to Proceed Despite not “checking the box” on the EEOC Charge

In Loconte v. Montgomery County, No. PWG-17-2052, 2018 BL 273880 (D. Md. Aug. 01, 2018), Defendant Montgomery County, Maryland (the “County”) hired Plaintiff Anthony Loconte as a Hazmat Permitting Program Manager in July 2005 and terminated his employment on January 2, 2015.  Believing that his termination, as well as his supervisors’ treatment of him leading up to his termination, was discriminatory, in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 – 12213 , Loconte filed an EEOC Charge and then this lawsuit.  The County moved to dismiss, arguing that Loconte’s EEOC Charge was not timely and he failed to exhaust his administrative remedies as to his retaliation claim.   Loconte filed his EEOC Charge without checking the box for retaliation. But, this Court routinely considers the facts alleged in the narrative provided with an EEOC charge to determine which claims a plaintiff exhausted. E.g., Whitaker v. Maryland Transit Admin., No. ELH-17-10-00584, 2018 U.S. Dist. LEXIS 25546 , [2018 BL 51467], 2018 WL 902169 , at *19-21 (D. Md. Feb. 14, 2018) (considering both which box was checked on the EEOC charge (retaliation) and the narrative on the EEOC charge (which described only retaliation) to conclude that the plaintiff “failed to exhaust his administrative remedies for the Title VII claim of race discrimination”); Plummer v. Wright, No. TDC-16-2957, [2017 BL 353886], 2017 U.S. Dist. LEXIS 164283 , [2017 BL 353886], 2017 WL 4417829 , at *8 (D. Md. Oct. 3, 2017) (dismissing retaliation claim for failure to exhaust administrative remedies where “Plummer failed to check the ‘retaliation’ box in her 2014 EEO Complaint or otherwise allege retaliation elsewhere in that filing“). As for what that narrative must allege, the elements of retaliation in violation of the ADA are “(1) engagement in a protected activity; (2) adverse employment action; and (3) a causal link between the protected activity and the employment action.” Hamilton v. Prince George’s Cty. Police Dep’t, No. DKC 17-2300, [2018 BL 90659], 2018 U.S. Dist. LEXIS 43774 , [2018 BL 90659], 2018 WL 1365847 , at *6 (D. Md. Mar. 16, 2018). With regard to the first element, “protected activity is conduct ‘opposing any practice made an unlawful employment practice[.]’” Id. This “expansive” definition “‘encompasses utilizing informal grievance procedures as well as staging informal protests and voicing one’s opinions in order to bring attention to an employer’s discriminatory activities.’” Id . A request for an accommodation is a protected activity under the ADA. See Haulbrook v. Michelin N. Am., 252 F.3d 696 , 706 (4th Cir. 2001). Also, a complaint to an employer qualifies as protected activity “when ‘the employee “communicates to [his or] her employer a belief that the employer has engaged in . . . a form of employment discrimination”‘” in violation of his or her federal rights. Hamilton, [2018 BL 90659], 2018 U.S. Dist. LEXIS 43774 , [2018 BL 90659], 2018 WL 1365847 , at *6. An informal complaint “do[es] not need to use legally actionable words or cite specific statutes” as long as it “states generally that a person is a victim of discrimination.” Id.  Here, Loconte alleged in the narrative attached to his EEOC Charge that he engaged in the protected activity of seeking accommodations for his disability; his complaints that the County was taking disciplinary action based on his disability were also protected activities. And, he alleged in his narrative that the defendant terminated his employment and his termination was causally connected to his protected activity.  Given Loconte’s pro se status at the time he filed the Filing of Charges, and considering that “the exhaustion requirement should not become a tripwire for hapless plaintiffs,” Sydnor v. Fairfax Cty., Va., 681 F.3d 591 , 594 (4th Cir. 2012), the Court construed his allegations to be a claim for retaliation. See Hamilton, [2018 BL 90659], 2018 U.S. Dist. LEXIS 43774 , [2018 BL 90659], 2018 WL 1365847 , at *6. Thus, Loconte’s narrative attachment to his EEOC Charge, which the Court considered in determining what claims he brought before the EEOC, includes a retaliation claim. See Sillah, 244 F. Supp. 3d at 509 . Therefore, the County’s Motion to Dismiss the retaliation claim for failure to exhaust administrative remedies was denied.

Read More »
Bruce Luchansky Aug 5 No Comments

Case Analysis: What is Discoverable in Litigation?

In litigation, opposing parties can sometimes get carried away with the quantity and quality of the information requested in discovery, raising doubts about the relevancy and necessity of the requested information.  In Terrell v. Memphis Zoo, Inc., No. 17-cv-2928-JPM-tmp (W.D. Tenn. July 20, 2018), the Court grappled with several fascinating questions regarding what was discoverable in the litigation. The case concerns a wrongful termination based on gender discrimination and the defendant employer requested the following information from the plaintiff, Dr. Terrell: 1) evidence regarding her violations of the defendant’s policies; 2) travel history; 3) job searches; 4) tax returns; and 5) social media accounts. I. BACKGROUND Dr. Terrell was hired by Memphis Zoo on August 31, 2015, to serve as the Director of Research and Conservation. She reported directly to Dr. Chuck Brady, Memphis Zoo’s President and CEO.  Dr. Terrell claims that, beginning in July of 2017, she grew concerned that Dr. Brady was treating her differently from the men who worked for him.  Among various examples of this behavior, she alleges that he arbitrarily criticized her work, made comments indicating that gender colored how he viewed her and other female employees, and subjected her to a performance review when none of the current or former male employees at her level were required to undergo such a review.  Dr. Terrell claims that she complained about this treatment to Dr. Brady and to the Chairman of the Board for Memphis Zoo.  She asserts that, after making her concerns known, Dr. Brady withheld a standard salary increase, was excessively critical of her work, and undermined her authority.   On November 1, 2017, Memphis Zoo either ordered or requested that Dr. Terrell not return to her office and that she work remotely. On November 13, 2017, Dr. Terrell filed a charge of gender discrimination and retaliation with the EEOC.  On November 27, 2017, Memphis Zoo terminated Dr. Terrell’s employment.  Memphis Zoo has indicated one of its reasons for terminating Dr. Terrell was her violation of Memphis Zoo policies requiring her to cooperate with other employees, to perform her work in a respectful and timely manner, and to act in a manner that is not obviously detrimental to the best interest of Memphis Zoo.  Dr. Terrell filed her lawsuit against Memphis Zoo on December 22, 2017. She asserts that Memphis Zoo’s actions constitute gender discrimination and unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964 and the State of Tennessee’s Human Rights Act.   MOTION TO COMPEL DISCOVERY In its motion to compel discovery, Memphis Zoo argued, inter alia, that Dr. Terrell  provided unsatisfactory responses to several of its interrogatories and document requests.  Violations of Memphis Zoo Policies In Interrogatory No. 11, Memphis Zoo asked Dr. Terrell to describe in detail every instance during her employment when she violated one of its policies or procedures. Dr. Terrell responded, “None.”  Memphis Zoo argues that this response is in bad faith because Memphis Zoo has proof that it previously reprimanded her for violating its social media policy.  The court found that Dr. Terrell cannot be compelled to admit she violated a policy that she does not believe she violated and, therefore, Dr. Terrell’s concise response is sufficient, citing case law that parties cannot be compelled to produce something that does not exist and that it is sufficient for a party to respond by saying that a particular document is not in existence or that it is not in the responding party’s possession, custody, or control. Accordingly, this section of Memphis Zoo’s motion to compel was denied. Travel History In Interrogatory No. 15, Memphis Zoo asked Dr. Terrell to describe in detail all work-related trips that she took in 2017, including her destination, reason for traveling, identification of her travel companions, and identification of the individuals who played a part in planning the trip.  Dr. Terrell objected that the interrogatory was overly broad, unduly burdensome, and vague, but nonetheless, provided Memphis Zoo with emails describing aspects of her past travels and informed Memphis Zoo where it might find travel receipts and airfare itineraries already in its possession. Memphis Zoo argues that this response was insufficient because the documents Dr. Terrell cited provided incomplete answers to the interrogatory.  The Federal Rules of Civil Procedure require courts to limit the scope of discovery to “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1) . Memphis Zoo argues that information about Dr. Terrell’s travel history is relevant because Dr. Terrell’s decision to travel to Panama, and elsewhere, instead of remaining on property left the Memphis Zoo understaffed. With respect to Dr. Terrell’s trip to Panama, the Court granted Memphis Zoo’s motion to compel. However, Memphis Zoo’s motion did not explain how information regarding other unidentified trips relates to any of the claims or defenses in the case.  Thus, this section of Memphis Zoo’s motion to compel was granted in part. Job Searches In Document Request No. 7, Memphis Zoo asked that Dr. Terrell provide it with all documents related to her attempts to obtain employment from the day Memphis Zoo hired her to the present. Dr. Terrell responded by directing Memphis Zoo to certain documents and has also supplemented her response by submitting additional documents.  Memphis Zoo argues that Dr. Terrell’s responses are insufficient because it knows she applied to more positions than the ones for which she has provided documentation.  According to Memphis Zoo, this information is relevant because it shows Dr. Terrell was aware that she was unable to adequately perform in her role as a Director of Memphis Zoo. Contrary to Memphis Zoo’s argument, the court found that this information was not relevant to any of the claims or defenses in the case. As evidenced by some of the emails Dr. Terrell provided in discovery, individuals search for jobs for numerous reasons unrelated to their personal opinions about their qualifications for their current position. Furthermore, to the extent that any of the information

Read More »
Bruce Luchansky Jul 21 No Comments

Maryland’s Disclosing Sexual Harassment in the Workplace Act of 2018

 The “Disclosing Sexual Harassment in the Workplace Act of 2018″ goes into effect on October 1, 2018. The Act first concerns a provision in an employment contract, policy or agreement that waives any substantive or procedural right or remedy to a future claim of sexual harassment or retaliation for reporting or asserting a right or remedy based on sexual harassment. The Act states that such a provision is null and void as being against the public policy of the State of Maryland. Second, the Act prohibits an employer from taking an adverse action against an employee because the employee fails or refuses to enter into an agreement that contains such a waiver. Third, an employer who enforces or attempts to enforce a provision that violates the Act will be liable for the employee’s reasonable attorney’s fees and costs. Finally, on or before July 1, 2020, and on or before July 1, 2022, employers with 50 or more employees shall submit a short survey to the Maryland Commission on Civil Rights on: (i) the number of settlements made by or on behalf of the employer after an allegation of sexual harassment by an employee; (ii) the number of times the employer has paid a settlement to resolve a sexual harassment allegation against the same employee over the past 10 years of employment; and (iii) the number of settlements made after an allegation of sexual harassment that included a provision requiring both parties to keep the terms of the settlement confidential.              

Read More »
Bruce Luchansky Jul 1 No Comments

Maryland Minimum Wage Law Updates

On July 1, 2018, the minimum wage rate for Maryland increases to $10.10 and the minimum wage rates for Montgomery County increases to $12.25 for employers with 51 or more employees and $12.00 for employers with 50 or fewer employees.

Read More »
Bruce Luchansky Jun 30 No Comments

NLRB Denies Reconsideration of Joint Employer Decision

On August 27, 2015, in Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery (Browning-Ferris), 362 NLRB No. 186 (2015), the National Labor Relations Board established a new legal standard for determining whether two employers are joint employers under the National Labor Relations Act. The Browning-Ferris standard: The Board may find that two or more entities are joint employers of a single work force if they are both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating the allocation and exercise of control in the workplace, the Board will consider the various ways in which joint employers may “share” control over terms and conditions of employment or “codetermine” them, as the Board and the courts have done in the past. Essential terms and conditions of employment include firing, discipline, supervision, and direction, as well as wages and hours, as reflected in the Act itself. Other examples of control over mandatory terms and conditions of employment found probative by the Board include 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.  The common-law concept of control informs the Board’s joint-employer standard. But the Board will no longer require that a joint employer not only possess the authority to control employees’ terms and conditions of employment, but must also exercise that authority, and do so directly, immediately, and not in a “limited and routine” manner. The right to control, in the common-law sense, is probative of joint-employer status, as is the actual exercise of control, whether direct or indirect. The existence, extent, and object of a putative joint employer’s control, of course, all may present material issues. For example, it is certainly possible that in a particular case, a putative joint employer’s control might extend only to terms and conditions of employment too limited in scope or significance to permit meaningful collective bargaining. Moreover, as a rule, a joint employer will be required to bargain only with respect to such terms and conditions which it possesses the authority to control. Temporary Overruling of Browning-Ferris – “Hy-Brand I” On December 14, 2017, in Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., the NLRB overruled Browning-Ferris, finding it a distortion of common law as interpreted by the Board and the courts, contrary to the NLRA, ill-advised as a matter of policy, and its application would prevent the Board from discharging one of its primary responsibilities under the Act, which is to foster stability in labor-management relations. February 26, 2018 Vacatur of Hy-Brand I The NLRB issued an Order vacating Hy-Brand I in light of the determination by the Board’s Designated Agency Ethics Official that Member Emanuel was, and should have been, disqualified from participating in the proceeding.  Because the Board’s Decision and Order in Hy-Brand I has been vacated, the overruling of the Board’s decision in Browning-Ferris Industries, set forth therein is of no force or effect.   June 2018: Motion for Reconsideration Denied This month, the NLRB denied the reconsideration of its February 26, 2018 Decision which vacated Hy-Brand I. Thus, the Browning-Ferris standard remains the applicable legal standard for joint-employer analysis under the NLRA.    

Read More »
Bruce Luchansky Jun 9 No Comments

Recent Posts

Categories

Tag Cloud

Tags
Schedule a confidential consultation.
Click Here

Let's talk.

Call us at 410-522-1020 or fill out the form below to receive a confidential initial consultation.

Name
Untitled