Joint Employer Rule Coming from DOJ Requires Deliberate Action in Setting Evidence Rather than Napkin Contracting

The US Department of Labor recently proposed a rule, which if adopted, will increase the possibility that two distinct companies are determined to be a joint employer with respect to claims under the FLSA (wages/overtime), FMLA (leave), and MSPA (seasonal work). 

The DOL’s proposal provides two ways joint employment can be established:

1. Vertical Joint Employment: two or more employers benefit simultaneously from an employee’s work.
2. Horizontal Joint Employment: an employee works separate hours for "sufficiently associated" employers.

The DOL’s factors for determining vertical joint employment include:

1. Whether the person/entity hires or fires the employee
2. Whether the person/entity substantially supervises or controls the employee’s work schedule or conditions of employment 
3. Whether the person/entity determines the employee’s rate and method of employment
4. Whether the person/entity maintains employee’s employment records

DOL’s factors for determining horizontal joint employment include:

1. Whether an employer acts, directly or indirectly, in the interest of another employer
2. Whether there is an arrangement between employers to interchange employees
3. Whether one employer controls or is controlled by another employer, or is under common control with another employer

Businesses can submit comments until June 22, 2026 by two methods where the proposed rule should be identified by Regulatory Information Number (RIN) 1235-AA48:

• Electronic Comments: Submit comments through the Federal eRulemaking Portal at https://www.regulations.gov. Follow the instructions for submitting comments.
• Mail: Address written submissions to: Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, Washington, DC 20210.

Should this be adopted, employment contracts and policy manuals are going to be the evidence needed to defend yourself from being named on a related entities wrong. This is not a time to napkin contract if you want to avoid great exposure. 

When wage and hour, leave, or seasonal worker claims expand into disputes over joint employer liability, the exposure can quickly spread across affiliated entities, ownership groups, management companies, and related businesses.

Lieb at Law, P.C. litigates complex employment disputes involving FLSA, FMLA, misclassification, and joint employer claims, while helping businesses build defensible agreements and operational structures before litigation begins.

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New York Post - Attorney Andrew Lieb Interviewed on Workplace Rights / Union Implications

Attorney Andrew Lieb shared insights with the NY Post on workplace rights and union implications. While unions offer protections, they come with legal nuances. Addressing concerns internally, like through HR, is advised, yet unresolved issues may call for legal steps. Strikes, powerful yet consequential, need judicious thought. Lieb delves into factors like "strikes as a last resort" and the importance of a compliant workplace culture.  #WorkplaceRights #UnionConsiderations #LegalInsights #StrikeResponsibly #LiebatLaw #EmployeeAdvocacy #attorneyandrewlieb #employmentlawyer #Sagaftra

https://nypost.com/2023/08/13/fed-up-with-pay-or-working-conditions-youre-not-alone/

NewsNation: Lululemon Firings: Security Flaw or Employee Scapegoats? Analysis with Attorney Andrew Lieb

Surprised by the recent #Lululemon employee firing story? Allow us to dissect it for you.

Employees Rachel and Jennifer were reportedly fired for standing up to repeat offenders. This isn't a case of rogue vigilantism, but employees ensnared in relentless criminal activity.

Corporations ought to bear some responsibility here. The real concern? Lululemon's apparent lack of proactive security measures and effective cooperation with law enforcement.

Stand Your Ground laws are common, but where is the support for employees standing their ground within their workplaces? Companies must shoulder security shortcomings, empower and protect their employees, and back them during vulnerable times.

Sharing Attorney Andrew Lieb's interview on this topic with NewsNation. 

Employers Required to Post New Anti-Discrimination Notice of Employee Rights

Federal law requires employers to post a notice created by the Equal Opportunity Employment Commission (EEOC), which summarizes the federal laws and explains filing procedures. 

The notice was just updated, and it is called the “Know Your Rights: Workplace Discrimination is Illegal” poster.

It must be placed conspicuously, in a location that is accessible to all employees, including those with disabilities that limit mobility. To ensure that remote employees receive notice, employers should also post the notice on their website.

Violations have consequences! An employer who fails to comply may be fined up to $612 for each separate offense.

New York Employees with Less Than Four Hours to Vote May Be Eligible for PTO

Let’s be real – creating a voting plan for Election Day doesn’t always make it to the top of the priority list. Busy work schedules can make it hard to find the time to get to the polls, but there are laws in place to that may help you overcome this obstacle. 

With election day approaching on Tuesday, consider how New York State Election Leave Law may help enable you to cast your vote for the issues you care about. 

Under the law, if you have less than four consecutive hours to visit the polls, you may be eligible for up to two hours of paid leave. If you intend to take time off to vote, you must notify your employer at least two, but no more than ten working days beforehand.  (Note: these days must be consecutive and don't include Sundays or holidays - so act fast if you need time off on Tuesday).

Employers cannot require employees to use other forms of earned leave time to vote, and must conspicuously post a notice of the law at least ten days prior to the election through to the closing of the polls. 

New York takes voting rights seriously. Violations of the Election Law are a misdemeanor, and can result in fines, imprisonment up to one year, or both. 

See you at the polls! 

Employer Responsible for 6-Year-Old’s Use of Racial Slurs in Discrimination Case

Did you know that Title VII employment discrimination cases can happen even if the perpetrator is merely the 6-year-old grandson of the owner?

That's the lesson from Chapman v. Oakland Living Center, which is a case against an assisted living facility where the owner’s 6-year-old grandson repeatedly used the n-word against a black employee.

The problem for the employer was - why didn't anyone stop him? The boy’s grandfather either knew or should have known about the conduct and failed to sufficiently respond. Yes, there was a spanking and an unsuccessful attempted to elicit an apology, but that wasn't enough.

The lesson here is don't let hostile, bigoted and offensive remarks occur at the workplace, no matter who is saying them. It's never okay, and failure to stop such remarks will result in a discrimination case. Be warned.