Board Modifies Independent Contractor Standard under National Labor Relations Act

06/13/2023 01:04 PM EDT June 13, 2023 In a decision issued today in The Atlanta Opera, Inc., the Board returned to the 2014 FedEx Home Delivery (FedEx II) standard for determining independent contractor status under the National Labor Relations Act (the Act), and overruled SuperShuttle (2019). In applying the FedEx II standard, the Board found that the makeup artists, wig artists, and hairstylists who work at the Atlanta Opera—had filed an election petition with the Board seeking union representation—are not independent contractors, excluded from the Act, but rather are covered employees. In its decision, the Board reaffirmed longstanding principles—consistent with the instructions of the Supreme Court—and explained that its independent-contractor analysis will be guided by a list of common-law factors. The Board expressly rejected the holding of the SuperShuttle Board that entrepreneurial opportunity for gain or loss should be the “animating principle” of the independent-contractor test. The Board further explained that entrepreneurial opportunity would be taken into account, along with the traditional common-law factors, by asking whether the evidence tends to show that a supposed independent contractor is, in fact, rendering services as part of an independent business. In reviewing the facts of this case and applying the FedEx II standard in Atlanta Opera, the Board determined that the majority of the traditional common-law factors point toward employee status. The Board also determined that the evidence did not show that the stylists rendered services as part of their own independent businesses. “In today’s decision, the Board returns to the independent contractor test articulated in FedEx II, and reaffirms the Board’s commitment to the core common-law principles that the Supreme Court has determined should guide the Board’s consideration of questions involving employee status,” said Chairman Lauren McFerran. “Applying this clear standard will ensure that workers who seek to organize or exercise their rights under the National Labor Relations Act are not improperly excluded from its protections.” In December 2021, the Board invited parties and amici to submit briefs addressing whether the Board should reconsider its standard for determining the independent contractor status of workers. Members Wilcox and Prouty joined Chairman McFerran in issuing the decision. Member Kaplan dissented from the overruling of SuperShuttle, but concurred in finding that the stylists were employees, not independent contractors.

Daily eBriefs - June 7, 2023

Employment Music with sexually derogatory and violent content, played constantly and publicly throughout the workplace, can foster a hostile or abusive environment and thus constitute discrimination because of sex; harassment, whether aural or visual, need not be directly targeted at a particular plaintiff in order to pollute a workplace and give rise to a Title VII claim; the challenged conduct’s offensiveness to multiple genders is not a certain bar to stating a Title VII claim. Sharp v. S&S ACTIVEWEAR - filed June 7, 2023 Cite as 2023 S.O.S. 21-17138 Full text click here >

Matthew S. Lomax Named Regional Director for Region 27-Denver

June 08, 2023 Today, General Counsel Jennifer A. Abruzzo announced the appointment of Matthew S. Lomax as the Regional Director of the NLRB Region 27-Denver office. With a Regional Office in Denver, Colorado, Region 27 is responsible for conducting elections, investigating unfair labor practice charges, and protecting the right of workers to act collectively to improve their wages and working conditions throughout Colorado, Utah, and Wyoming, as well as parts of Idaho, Montana, and Nebraska. “Matt is an exemplary public servant with a strong commitment to the National Labor Relations Act,” said General Counsel Jennifer Abruzzo. “I am certain that he will use his considerable skills and talents in this new leadership role and will work every day to fully effectuate the Act and faithfully serve the public.” A native of Saint Louis, Missouri, Matthew Lomax earned a Bachelor of Science in Justice Systems from Truman State University in Kirksville, Missouri and a Master of Business Administration from Webster University in Saint Louis, Missouri. He began his career with the Agency in 1997 in St. Louis as a Labor-Management Relations Examiner and was promoted to Supervisory Field Examiner in Denver in 2011.

Daily eBriefs - June 1, 2023

Employment California Labor Code §2810.3(a)’s requirement that work take place on the premises of the client employer requires that a client employer exercise some element of control over the place where the laborers work. Morales-Garcia v. Better Produce - filed June 1, 2023 Cite as 2023 S.O.S. 22-55119 Full text click here >http://sos.metnews.com/sos.cgi?0623//22-55119 Employment The National Labor Relations Act did not preempt a plaintiff’s tort claims alleging that a union intentionally destroyed its company property during a labor dispute. Glacier Northwest v. International Brotherhood of Teamsters Local Union No. 174 - filed June 1, 2023 Cite as 2023 S.O.S. 21-1449 Full text click here >http://sos.metnews.com/sos.cgi?0623//21-1449_d9eh

Arguments over the legality of DACA will be heard in a federal court in Texas

A MARTÍNEZ, HOST: In Houston today, a federal judge is again hearing arguments about the legality of DACA. The Deferred Action for Childhood Arrivals program provides temporary legal status to immigrants brought to the U.S. as children. Texas is among the states challenging DACA, first started by the Obama administration more than a decade ago. We spoke earlier with immigration reporter Stella Chavez of member station KERA in Dallas. Stella, what can we expect in court today? What are the attorneys going to be arguing? STELLA CHAVEZ, BYLINE: So basically, the attorneys for the civil rights group MALDEF, and that's the Mexican American Legal Defense and Educational Fund, they're going to focus on two main issues. The first is that neither Texas nor the other states in this multi-state lawsuit have standing to sue. And so what that means is that the states haven't shown that DACA has caused their state any injury, for example, that DACA recipients aren't a financial burden. And the second issue they'll argue is that DACA is, in fact, lawful. So in other words, the federal government has the right to allow DACA recipients to stay in the country, receive work permits, attend college, basically live here lawfully. MARTÍNEZ: Yeah. And this isn't the first legal challenge for the program. I know that Judge Andrew Hanen ruled nearly two years ago that DACA was unlawful. CHAVEZ: Yes, that's right. But it's complicated. It's been a very long legal battle going back several years. And after Hanen's ruling, it was appealed to the fifth court, which agreed with Hanen. The Biden administration then fortified some DACA protections by finalizing a rule, and then the case was kicked back to his court. So here we are again, basically with Texas and the other states still challenging the legality of the program. MARTÍNEZ: Yeah. Now for the 600,000 active DACA recipients, what does this all mean or what it - could it all mean for them? CHAVEZ: Well, a lot of them were kids when they were brought to this country. I mean, the oldest recipients are now in their early 40s. Some are married with families. They have jobs. They're actually teachers, health workers. They're in social services. And many of them have lived in the U.S. longer than in their home countries, and they actually feel more connected to this country. So some may not even speak their parents' language or speak it well, and it's been really stressful. A lot of people I've talked to have said that they are constantly worried about their future. MARTÍNEZ: All right. So when might there be a ruling in this case? CHAVEZ: So observers say they don't expect the judge to rule right away. And when he does, it won't necessarily mean the end of DACA. So if he rules against it, it'll likely be challenged. We can expect more court dates. And, in fact, most people expect the case to end up back at the U.S. Supreme Court. And so while all of this is happening, current DACA recipients would likely get to keep their status, but new applicants would still be denied. So there's still a lot of uncertainty. MARTÍNEZ: Yeah, until Congress decides to act. That's Stella Chavez of member station KERA. Stella, thanks. CHAVEZ: Yeah. Thank you, A. For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.

Daily eBriefs - May 31, 2023

Contracts An arbitration agreement unambiguously excluded Private Attorneys General Act claims where it stated that “claims under PAGA…are not arbitrable”; it is not objectively reasonable to interpret the phrase “claims under PAGA” to include some PAGA claims while excluding others. Duran v. EmployBridge Holding - filed April 27, 2023, publication ordered May 30, 2023, Fifth District Cite as 2023 S.O.S. 1802 Full text click here >http://sos.metnews.com/sos.cgi?0623//F084167