Want to Peek at Your Employee’s Email? Be Careful!

Want to Peak at Your Employee's Email? Be Careful!Can you look at an employee’s personal email account if you access it on company equipment? A recent opinion from the federal District Court of Maryland should at least make you think twice before doing that. In Levin, et al. v. ImpactOffice, the court denied a company’s motion to dismiss a former employee’s Stored Communication Act (SCA) claim, which arose out of just such a scenario. The court found that former employee Melissa Edwards could proceed with her claim because the accessed emails were retained on Gmail’s servers “for purposes of backup protection.”

The Facts

By way of background, Edwards and several other former employees filed suit against Impact, seeking a declaratory judgment that the restrictive covenants in their employment agreements were unenforceable. Edwards also asserted a claim under the SCA. In her complaint, Edwards alleges that after she resigned, Impact requested that she return her company-provided cellular phone. Edwards deleted all of her personal Gmail emails before returning the phone. After obtaining the phone, Impact used it to access Levin’s Gmail account on at least 40 occasions, forwarding some of the emails to Impact’s counsel, including emails between Edwards and her counsel that were sent after Edwards resigned and clearly marked “privileged and confidential attorney-client communications and work product.” Impact also deleted from Edwards’s account all emails that would have revealed the forwarding of her emails to Impact. Levin later filed suit against Impact, asserting two claims, one under the SCA.

The SCA and the Court’s Decision

A party may be held liable under the SCA where a person “intentionally accesses without authorization a facility through which an electronic communication service is provided . . . and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system.” Electronic storage is considered “(A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication.”

In its motion, Impact argued that Levin’s SCA claim failed because she did not allege the emails Impact accessed were unopened. As such, the emails did not meet the definition of electronic storage. In response, Levin argued the emails fell within part (B) of the definition because copies of the emails she deleted from the phone were maintained on Google’s server “for purposes of backup protection.” Therefore the read/receipt status of the email did not matter. While the court acknowledged the read/receipt status of an email could impact whether it fell within part (A) of the definition, the court agreed with Levin that it was not germane under part (B).

The court ultimately concluded that Levin had properly alleged a SCA claim under part (B) of the definition of “electronic storage,” relying, in part, on the Ninth Circuit’s holding in Theofel v. Farey-Jones. Specifically, the court found that the emails fell within the definition of electronic storage because they were downloaded or delivered to an electronic device with a copy retained on Gmail’s server. The court, however, excluded from that definition emails that are maintained on an ISP’s server only.

Takeaways

The court noted that applying the definition of electronic storage “is a difficult endeavor because the technology relating to emails and other electronic communication has changed since the enactment of the SCA.” As electronic communication technology advances, that difficulty will only increase. As such, employers should be very wary of accessing an employee’s web-based email account without permission. Doing so could expose the employer to actual damages, statutory damages in the amount of $1,000 per violation of the SCA, and claims for equitable relief and punitive damages, as well as attorney fees.

WELCOME (?) BACK! DOL Reinstates Wage and Hour Opinion Letters – Should it Matter to You?

WELCOME (?) BACK! DOL Reinstates Wage and Hour Opinion Letters – Should it Matter to You? The U.S. Department of Labor recently announced that it will revive its practice of publishing opinion letters to provide guidance to employers and employees on wage and hour issues. This change (after a seven-year hiatus) reopens the door for employers and employees to gain clarity on important issues affecting the workplace.

What’s an opinion letter?

An opinion letter is an official opinion written by the DOL Wage and Hour Division addressing a specific issue that affects employers and/or employees. An employer or employee can submit a request for an opinion letter on the DOL’s webpage. The DOL will review the request and may issue an opinion letter, if appropriate. (They get lots of them, so every request won’t be a taker!) The request should summarize the relevant facts and pose a question or issue for the DOL to address. The opinion letter is the DOL’s written response to that request, based on the information provided by the requester (who remains anonymous to the public) and any assumptions made by the DOL.

Why would you request an opinion letter?

There are many scenarios where an opinion letter might be helpful to an employer or employee. For example, if an employee switches from nonexempt status to a fluctuating workweek, an employee might seek guidance about whether the employee’s old bonus plan fits into his or her new compensation structure. Or an employer offering online classes to employees in preparation for a voluntary job training class may want to know whether that training time is compensable under the FLSA, as in this 2009 opinion letter.

If you’ve got a question about wage and hour laws and you can’t seem to find the answer in other guidance, requesting an opinion letter might be the right step. It may also be helpful to review past opinion letters. But remember, opinion letters are just guidance—they aren’t the law, and they aren’t binding.  When you’re navigating the intricacies of wage and hour issues, opinion letters can be a helpful tool.

EEOC To Employers: Requiring Employees to Return to Work with “No Restrictions” Could Get You Sued

EEOC To Employers: Requiring Employees to Return to Work with “No Restrictions” Could Get You Sued

Before the Americans with Disabilities Act (and there was a time before the ADA), it was not uncommon to require employees to have a doctor’s note returning them to work “with no restrictions.” That won’t work in today’s ADA world, and the EEOC’s recent complaint against M&T Bank Corporation in New York provides a clear reminder.

The Details

The EEOC alleges that HCSB (a bank that M&T acquired in 2015) had a policy requiring employees “with potential disabilities to take leave until a physician provided a full release with no restrictions.” Upon requesting a reasonable accommodation or more than five days off in connection with a medical condition, an employee got a letter that said “You may only return to work if your doctor has provided a written notice of a full release with no restrictions.”

The complaint mentions four allegedly aggrieved employees:

  • Carmen Gaillard (Achilles tendinitis and bone spurs) and the Staten Island Clerk (a broken foot) each claim they were denied the reasonable accommodation of being allowed to wear a “cam walker boot” to work.
  • The Cherry Hill Teller who claimed she needed accommodations for complications related to her pregnancy.
  • The Jersey City Clerk who had arthritis and claimed she needed a cane to walk following some surgery. She did not request the accommodation (using the cane) because she knew it would not be granted.

The complaint also alleges that HCSB required people to remain on leave (rather than provide a reasonable accommodation such as the cam walker boot), and then terminated them after they couldn’t return to work without restrictions after 26 weeks (and sometimes earlier).

What Can We Learn from This?

We do not know the actual facts—only what the EEOC alleges in the complaint. However, assuming the facts as alleged are true, I can think of a few takeaways:

  1. Return-to-work policies: Be sure your policies and form letters don’t suggest that an employee can only return to work “without restrictions” or with a “full medical release.” Policies should talk about being able to perform the job “with or without a reasonable accommodation.” Your form letters should encourage employees to tell you what, if anything, you can do to help get them back to work. Remember that you have to engage in the interactive process, and you need a clear record of what the employee requested as an accommodation.
  2. No bright lines: Having a bright line policy that employees who run out of leave will be terminated if they cannot immediately return to work is risky. The EEOC has made clear that it believes leave can be a reasonable accommodation.
  3. Get the word out on your policies: Make sure no one in your organization thinks that employees are automatically terminated if they run out of leave. I listened with horror (yes, horror) to a former HR Manager explain that the company always terminated people who couldn’t return to work after they ran out of FMLA leave. I knew that was not the corporate policy but apparently my onsite HR Manager had either ignored or forgotten about that change.
  4. Consider accommodation even if the disability is questionable: The EEOC defines disability as broadly as possible. At first glance, I might have said that the Staten Island Clerk’s broken foot was not a disability under the ADA because it was transitory and minor. However, if she needed 26 weeks of leave, it doesn’t look all that minor or transitory. It is probably best to look at the requested accommodation and not get hung up on whether it is a disability.

Are Transgender Employees Disabled under the ADA?

Are Transgender Employees Disabled under the ADA?There has been a lot of discussion over the last year about whether transgender employees are protected against sex discrimination under Title VII—but what about against disability discrimination under the Americans with Disabilities Act (ADA)? Maybe. In Kate Lynn Blatt v. Cabela’s Retails, Inc., a federal district court in Pennsylvania has ruled that a transgender former employee can proceed with her ADA claims.

Blatt began work with Cabela’s in 2006. She alleges that she complained to management that her coworkers made degrading and discriminatory comments because she is transgender and has gender dysphoria. She also alleges that she was denied requested accommodations for her gender dysphoria (e.g., a female work uniform, use of the women’s restroom). She further claims that Cabela’s then terminated her in retaliation for her complaints and requested accommodations. She filed a lawsuit under Title VII and the ADA.

The ADA provides that the term disability shall not include, among other things, “gender identity disorders not resulting from physical impairments.” Accordingly, Cabela’s moved to dismiss Blatt’s ADA complaint on the grounds that her gender identity disorder was not a covered disability. Blatt responded that if the ADA excluded her condition, it was a violation of her equal protection rights.

The court denied Cabela’s motion to dismiss, avoiding Blatt’s equal protection claim. Specifically, the court held that the ADA’s exclusion of gender identity disorders could be read narrowly to exclude only the condition of identifying with a different gender but not excluding “disabling condition that persons who identify with a different gender may have.” Ultimately, the court concluded that Blatt’s gender dysphoria, which she alleges substantially limits her major life activities, could be a covered disability. So, the court denied the motion to dismiss the ADA claims, both the discrimination and retaliation.

On a practical level, this is probably not game changing for employers (at least at this point). It is just one more consideration in dealing with transgender employees or applicants. If a person identifies as transgender, you may want to treat it as a disability issue, which could include engaging in the interactive process and requesting appropriate medical information. Similarly, if an employee complains that he or she is being mistreated because of being transgender, handle it like any other discrimination or harassment complaint. That way if you get sued—either for sex or disability discrimination—you will be in the best position to defend the claim, regardless of where the courts ultimately come down on this issue.

The (Exempt) Boys of Summer: 9th Circuit Upholds Minor League Baseball Antitrust Exemption in Wage Suit

The (Exempt) Boys of Summer: 9th Circuit Upholds Minor League Baseball Antitrust Exemption in Wage SuitDoes Major League Baseball’s (MLB) farm league system violate federal antitrust laws? Not according to the 9th Circuit. As written about in this previous post from July 2016 and one from July 2015, numerous minor league baseball players filed suits against numerous major league teams claiming that the salary structure for MLB’s farm system violated the wage and hour laws because they have to work an average of 50 to 60 hours per week, but only earn less than $10,000 per year. They further alleged that the teams’ hiring and employment policies violated federal antitrust laws by restraining competition between franchises and artificially depressing minor leaguers’ salaries. At the lower court, the owners of the teams filed a motion to dismiss arguing that the business of baseball has long been exempted from antitrust restrictions. The court agreed, dismissed the case, and the players appealed.

The 9th Circuit opinion went through the long history of baseball and its relationship to antitrust statutes. The two significant antitrust statutes, the Sherman Act and the Clayton Act, were passed in 1890 and 1914 in response to concerns about monopolies among businesses across the country. In 1922, in the seminal case of Federal Baseball Club of Baltimore v. National League of Baseball Clubs, the United States Supreme Court held that the business of baseball should not come under those anti-monopoly statutes. Thirty years later, in Toolson v. New York Yankees, Inc., the Supreme Court again affirmed the exemption.

Interestingly, throughout the years, other entertainment and sports organizations have tried to get the same exemption treatment by the court, but to no avail. Traveling theater companies, professional boxing, professional football and professional basketball all unsuccessfully sought the same exemption under antitrust laws. In those cases, the Supreme Court said that it was the role of Congress, not the courts, to create additional exemptions to federal antitrust laws. This reasoning was interesting since it wasn’t Congress that created the baseball exemption, but actually the court itself! In the 1972 case of Flood v. Kuhn, the Supreme Court again affirmed the baseball antitrust exemption. In that opinion, the court noted that Congress had introduced numerous bills over the years, both for and against the baseball exemption, but none had passed. Since so much time had passed and professional baseball had developed into a major industry, the court was concerned about the consequences of overturning the exemption and again tossed the ball to Congress.

This time, Congress made the tag—for some. In 1998, Congress passed the Curt Flood Act, named after the Reds centerfielder who unsuccessfully challenged MLB’s trade policies as being in violation of antitrust statutes. The Curt Flood Act wiped out the antitrust exemption for organized major league professional teams. However, it specifically retained the antitrust exemption for anything related to the employment of minor league baseball players—-such as the ones in the suit here. As such, even though the minor league players begged the court to go against the past history of the exemption and the carve-out of minor leaguers in the statute, the 9th Circuit ultimately called their wage suit out at the plate.

While it is extremely unlikely that this decision will have any impact on employers that are not minor league baseball team owners, it is interesting to review some of the creative baserunning that past courts went through to protect America’s favorite pastime exemption.

Avoiding Diversion: New Tennessee Law Imposes Potential Obligations on Employers When Healthcare Providers Fail Drug Tests

Avoiding Diversion: New Tennessee Law Imposes Potential Obligations on Employers When Healthcare Providers Fail Drug TestsTennessee lawmakers are cracking down on nurses and other healthcare providers (HCPs) diverting medications for personal use. A law going into effect on July 1, 2017, (yes—next week) puts an obligation on employers of HCPs and substance abuse treatment programs to report failed drug tests under certain circumstances to the state so drug-diverting HCPs have their licenses suspended.

According to a Tennessee legislative hearing, there have been several instances of employers terminating nurses who diverted medications from patients to themselves. After their firings, the nurses’ licenses remained active with the state, so they went to work for other healthcare employers (who apparently were unaware of the nurses’ prior transgressions) and continued the diversion scheme.

The New Requirements

Under the new law (effective July 1, 2017), the state plans to take licenses away from HCPs sooner by requiring employers to report failed drug tests or refusals to submit to drug tests to the appropriate state licensing board. The new law expressly states that:

  • failing a pre-employment drug test,
  • failing a confirmation drug test, or
  • refusing to submit to a drug test

violates the practitioner’s practice act unless the HCP has a lawful prescription or a valid medical reason for using the drug. Violations of a practice act can result in an HCP, a nurse for example, to lose his or her license, as well as face other potential sanctions.

Pursuant to the new law, when an HCP refuses to submit to a drug test or tests positive, he or she has three business days to either (1) produce a lawful prescription or “valid medical reason” for using the drug, or (2) report to a substance abuse peer assistance or treatment program. If the HCP stays with the substance abuse program, then the employer does not have to report the violation to the state and the HCP’s license or certification is not suspended. If, however, the HCP fails to comply with the substance abuse program, the new law requires the employer and the substance abuse program to report the violation and the appropriate licensing board “shall suspend” the HCP’s license, certificate, or permit.

If the new law has its desired effect, it will help Tennessee employers from perhaps unwittingly hiring healthcare providers with substance abuse problems because their licenses will be suspended or revoked. As America deals with what has been called the opioid crisis, we will have to stay tuned to see whether this new law helps keep diverting healthcare practitioners off of employers’ payrolls.

Back to Wedding Cakes and DJs—5th Circuit Overturns Injunction against Mississippi Religious Freedom Law

Back to Wedding Cakes and DJs----5th Circuit Overturns Injunction against Mississippi Religious Freedom Law Last week, the 5th Circuit Court of Appeals overturned a lower court’s injunction of the enactment of Mississippi’s “Protecting Freedom of Conscience from Government Discrimination Act” (HB 1523). As written about in a blog post from July 2016 and one from April 2016, this law was touted as only dealing with state action against individuals who may have strong religious or moral beliefs in how they make service or employment decisions. Many thought that HB 1523 could be interpreted much more broadly and got a court to enjoin it.

The 5th Circuit found that the individuals and groups that obtained the injunction had not yet suffered an adequate injury that would give them standing to challenge the constitutionality of the law. The opinion did not make any judgments on how the court might rule if a plaintiff with an actual injury challenged the law.

It is likely that the plaintiffs in this matter will ask for a rehearing, a stay, or take this case to the United States Supreme Court. As the law was scheduled to go into effect on July 1, 2016, given the 5th Circuit’s ruling, it may be considered effective immediately. As noted in our earlier posts on this matter, it is important for Mississippi employers to remember that this law does not relieve them of any responsibilities or prohibitions under federal laws like Title VII.

Another Facially Neutral Employment Policy Bites the Dust

Another Facially Neutral Employment Policy Bites the DustAbout a year ago, the National Labor Relations Board (NLRB or Board) struck down another neutral employer workplace rule – this one against making unauthorized recordings in the workplace. The NLRB’s decision just was affirmed by the federal appeals court in New York this month. It seems that yet another common sense rule bites the dust.

The Policy

The employer Whole Foods Market had a policy which prohibited workplace recordings, no matter what the subject matter of the recording was. Actually, the company had two related rules in its employee handbook: One against the recording of company meetings without prior approval from management, and the second against any recording in the workplace without similar prior approval.

The Company’s Position

Whole Foods included the policy in its handbook for reasons unrelated to employee labor relations rights. The motivation was to encourage employee participation and involvement at work, and the company believed that employees taking videos or recordings of each other would discourage involvement. The company asserted in the legal proceedings that it believed that allowing recording in the workplace actually would have a negative impact on employee or union organizing activity, not the other way around. Whole Foods’ position thus was that its no-recording policy did not violate its employees’ rights to act collectively under the National Labor Relations Act (NLRA).

 The Board’s Position

The NLRB’s stated position is that a work rule is unlawful “if it would reasonably tend to chill” employees in their exercise of protected concerted activities under Section 7 of the NLRA – basically those activities that employees do together to address issues in the workplace. If the rule explicitly prohibits such activities, it of course is unlawful. If it does not prohibit lawful union activity explicitly, it still is unlawful if (1) employees reasonably would construe the rule to restrict their rights, (2) the rule was adopted in response to group activity, or (3) the rule was applied to restrict group activity. In this case, the Board’s position was that lawful recording could include documenting unsafe work practices, discussions about terms and conditions of employment, inconsistent application of work rules, picketing, or evidence for a later legal proceeding.

The Board also had a problem with the breadth of Whole Foods’ policy. The Board implied that the policy might be acceptable if it was more narrowly drawn so that employees would understand that lawful recording under the NLRA was not prohibited. Moreover, the Board noted that Whole Foods’ policy did not differentiate between recordings made in nonworking areas and during nonworking time, which often is the analysis applied to employee nonsolicitation rules.

The Final Ruling

The federal appeals court in New York just agreed with the NLRB this month. The court stated that the core question is whether the “employees would reasonably construe the language to prohibit protected activity.” Applying a deferential standard of review to the NLRB’s position on this issue, the appellate court then affirmed the earlier Board decision. The appellate court emphasized further, however, that a more narrowly tailored policy could be lawful. For example, a policy restricting recordings that violated patient rights, constituted employee harassment, or disclosed trade secrets of the company perhaps could be lawful.

Why This Matters to You

Facially neutral employment policies will continue to be under attack by the NLRB, at least for a while. So, check your policies. The NLRB continues to be active in this area and is making it clear it will go after any neutral policies that may chill Section 7 rights, especially those policies that restrict communication or group activity in any way. These policies can include unauthorized recording bans, as well as nonsolicitation rules, email use prohibitions, social media restrictions, and even simple attendance policies if they interfere with lawful group activity.

And one other bit of advice. Don’t say anything to your employees that you do not want recorded!

The Devil is in the……..Biometric Scanner? Fourth Circuit Finds Employer Failed to Accommodate Employee’s Religious Belief

The Devil is in the……..Biometric Scanner? Fourth Circuit Finds Employer Failed to Accommodate Employee’s Religious BeliefJust how far do you have to go to accommodate an employee’s off-the-beaten-path religious belief? The 4th Circuit Court of Appeals recently ruled that you at least have to give the same accommodations you give to disabled employees. In U.S. EEOC v Consol Energy, Inc., Mr. Beverly Butcher’s evangelical Christian beliefs put him in conflict with Consol Energy’s decision to use a hand scanner as part of the time clock system.

The Facts

Mr. Butcher, who had worked for the coal mine for 40 years, was also an associate pastor in a church that believed that the hand scanner time clock would “mark” him in a way that could lead to his identification with the Antichrist, as shown in the book of Revelation. He talked to his union representative about his concerns and the union contacted HR. Initially, the coal mine told Mr. Butcher that they needed a letter from his pastor explaining why he needed a religious accommodation. Mr. Butcher provided the letter and also met with management about the situation. He offered to verbally report his time to his supervisor or to punch in on a time clock instead of using the biometric hand scanner. Consol Energy responded by providing a letter from the scanner manufacturer assuring that (no kidding) since the biometric scanner only used an employee’s left hand, it would not violate any concerns from Revelation which states that the “Mark of the Beast” is only associated with the right hand or forehead.

Unknown to Mr. Butcher, at this same time the coal mine was accommodating two other employees who had hand injuries. Those employees were allowed to enter their personnel numbers on a keypad instead of using the scanner. The employer refused to make the same accommodation for Mr. Butcher, noting in an email “Let’s make our religious objector use his left hand.” Mr. Butcher was told he had to use the hand scanner system, so he tendered his retirement papers and, apparently, an EEOC charge. The EEOC brought an enforcement action against the coal mine for failing to accommodate Mr. Butcher’s religious beliefs in violation of Title VII and constructively discharging him.

At trial, Mr. Butcher and the EEOC won and awarded him $150,000 in damages. The court later awarded an additional $436,860 in front and back pay and lost benefits. The coal mine appealed.

The 4th Circuit’s Take

The 4th Circuit’s opinion began by noting that under Title VII, an employer must make reasonable accommodation for the religious beliefs of employees, short of incurring an undue hardship. To show a violation of this accommodation duty, an employee must show that he or she has a bona fide religious belief that conflicts with an employment requirement; that he or she informed the employer of this belief; and that he or she was disciplined for failing to comply with the conflicting employment requirement.

The coal mine argued that Mr. Butcher was not entitled to win because there was, in fact, no conflict between his religious beliefs and the requirement that he use the hand scanner system. They relied on the fact that Mr. Butcher admitted that the scanner would not imprint a physical mark on his hand. However, the 4th Circuit found it significant that Mr. Butcher clearly laid out his religious objection to using the system, despite knowing that it would not produce a physical mark. The court held that there was “ample evidence” to show that Mr. Butcher sincerely believed that even without a physical mark, his use of the hand scanner “was a showing of allegiance to the Antichrist” and was inconsistent with his religious convictions. The fact that the employer believed that Mr. Butcher’s beliefs about the hand scanner were “mistaken” was not enough to get beyond that conflict. The court stated that it is not the employer’s place to “question the correctness or even the plausibility of [the Plaintiff’s] religious understandings.” Instead, as long as there is sufficient evidence that the employee’s beliefs are sincerely held, as the jury found here, then they must accommodate.

The coal mine also attempted to argue that Mr. Butcher did not suffer an adverse employment action since he chose to retire. The court found that there was substantial evidence that Mr. Butcher was put in an “intolerable position” when his employer failed to accommodate his religious objection. The court held that Mr. Butcher’s belief that his use of the hand scanner would render him a follower of the Antichrist and make him “tormented with fire and brimstone” went beyond run-of-the-mill employee complaints such as unfair criticism or dissatisfaction with work assignments. As such, his retirement could constitute a constructive discharge. The 4th Circuit ended up affirming the lower court verdict and findings.

Accommodating Sincerely Held Religious Beliefs

This case provides a good, but probably rare, example of where an employee’s unique, but sincere, religious belief may come in conflict with what seems to be a mundane employer requirement. As noted by the court, an employer cannot escape the requirement to accommodate simply because they think the belief is stupid or mistaken. If there is enough evidence to show that the employee really believes it, you need to start looking at whether you can find some sort of accommodation.

This is also a good reminder that undue hardship is a defense in a religious accommodation case.  Although the undue hardship defense is less onerous in this context that under the Americans with Disabilities Act, you still have to show hardship. That the coal mine was providing an accommodation for two other employees’ physical restrictions (even if only temporarily) certainly did not help the argument’s cause. The coal mine here chose not to provide Mr. Butcher a similar accommodation, and it ended up costing them.

Parting of the Joint Employers: Trump DOL Withdraws Past Guidance on Independent Contractor Standards and Joint Employment

Parting of the Joint Employers: Trump DOL Withdraws Past Guidance on Independent Contractor Standards and Joint Employment Yesterday the U.S. Secretary of Labor Alexander Acosta announced the Department of Labor’s withdrawal of guidance on independent contractors and joint employer liability issued in 2015 and 2016 by the Obama administration DOL. Generally, the guidance made more people employees rather than independent contractors. In particular, this guidance sought to (1) define more rigidly the situations in which a worker was found to be an employee under an “economic realities test” (even when an independent contractor relationship was intended), and (2) expand the joint employer doctrine taking into account “whether, as a matter of economic reality, the employee [was] economically dependent on the potential joint employer.”

The DOL’s roll back of Obama-era guidance signals an important shift in favor of employers, but no binding laws have changed. Employers should remember that the same statutes, regulations, and case law are still in force and the analysis applied to these issues remains the same, at least for the time being. In fact, the proper legal “test” for joint employer liability is currently on appeal in the D.C. Circuit in the Browning-Ferris case, with a decision expected later this year. For a more detailed look at the law on independent contractors and joint employers, see our previous blog posts on independent contractors and joint employment.  Be sure to keep an eye on how the DOL’s action affects these issues going forward.

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