Todd Lebowitz

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Labor Department Withdraws 2015-16 Joint Employment, Independent Contractor Guidance

Did the new Labor Secretary finally throw employers a bone? We think so, but it’s too early to tell whether it’s delicious bacon-flavored or some generic processed meat flavor. On June 7, 2017, the Department of Labor (DOL) announced it was withdrawing the 2015 and 2016 informal guidance on joint employment and independent contractor misclassification.  The … Continue Reading

New NYC Law Requires Written Agreements for Solo Contractors, Even Nannies and Babysitters!

Do you have a nanny or a housekeeper? A regular babysitter? If so, pay attention. Anyone hiring a solo independent contractor in New York City will need to comply with the Freelance Isn’t Free Act, which takes effect May 15, 2017. Anyone. Individuals included. The Act requires a written agreement for all contracts where the value … Continue Reading

Joint Employment Update: What’s The Status of Browning-Ferris and the NLRB?

In August 2015, the NLRB rewrote the book on joint employment, declaring in the Browning-Ferris case that the right to exercise minimal control, even if not actually exercised, was enough to create a joint employment relationship.  (Read more here.) Previously, joint employment under the National Labor Relations Act (NLRA) required the actual exercise of a meaningful … Continue Reading

NLRB Makes Up More New Rules on Joint Employment

Remember that kid in elementary school who, whenever you were winning at some made-up playground game, would change the rules in the middle? “Kids can be so unfair,” your parent might have said, trying to console you. “But when you get older, there are laws and rules, and they’re written down. Everyone knows what the rules … Continue Reading

Oregon Limits Criminal Background Inquiries by Employers

Oregon became the seventh state to ban the box for private employers, prohibiting any questions about criminal background on employment applications and at any time before an initial interview takes place. Oregon’s law took effect January 1, 2016. Ban-the-box laws have become increasingly prevalent as a way to help provide ex-offenders an opportunity to be … Continue Reading

FedEx to Pay $228 Million in Independent Contractor Misclassification Settlement

Things that $228 Million will buy: – LeBron James’s waterfront mansion in Miami, listed for $15 million – A 710-year old copy of the Magna Carta, sold in 2007 for $21.3 million – The Oakland A’s, sold in 2005 for $180 million – Three personal submarines, at $2 million each; and – Tivi Island in Fiji (yes, the whole island), available … Continue Reading

No Tag-Backs! Employee Is Entitled to FMLA Coverage, Even Though Not Eligible

The playground game of tag has been played since at least the Cretaceous Period, with efforts by paleontologists to verify earlier origins of the game inconclusive to date. As all sophisticated tag players know, the unwritten rules of the game permit no tag-backs. Once you’ve been tagged, you can’t quickly undo having become “it” by retagging … Continue Reading

No Number, No Job: Classic Rock Song Titles Explain It Best

When job applicant Don Yeager refused to provide a social security number to his prospective employer, he was shown the door.  He sued, claiming that identifying himself by a number violated his religious beliefs.  In a short decision, the Sixth Circuit Court of Appeals ruled that his claim was properly dismissed.  Yeager v. FirstEnergy, Jan. … Continue Reading

Latest Scoop From New Jersey on Independent Contractor Misclassification May Cause Employers Brain Freeze

An ice cream parlor in Dania Beach, Florida, features The Original Kitchen Sink Sundae, which contains up to 30 scoops, plus chocolate syrup, marshmallows, nuts, whipped cream, and a variety of berries.  Customers can choose from any of the 38 flavors offered, and this menu item has earned Jaxson’s Ice Cream Parlor plenty of positive … Continue Reading

Volunteers Alleging Employment Status Lose Title VII Case, but Court Applies Vigorous Analysis First

Everyone’s looking for volunteers. The Salvation Army recruits helpers with the promise of “Doing the most good.” Volunteers of America invites participation by reminding the public “There are no limits to caring.” Even Disney’s Haunted Mansion seeks new recruits, reminding guests at the end of the doom buggy tour, “We have 999 happy haunts here, … Continue Reading

DOL Refills States’ War Chests for Independent Contractor Misclassification Crackdown

The U.S. Department of Labor has awarded $10.2 million in grants to 19 states for continued independent contractor misclassification detection and enforcement. The grants are focused on unemployment insurance programs and, more specifically, companies’ failure to pay unemployment insurance premiums for workers treated as independent contractors but whom the states deem to be employees. This … Continue Reading

New California Law Imposes Joint Liability on Businesses and Contract Vendors for Wage Violations and Workers’ Compensation Coverage

For companies using independent contractors in California, 2014 has been a difficult year, with several significant court decisions threatening the contractor model. In June, the Ninth Circuit rejected the parties’ choice of Georgia law in an independent contractor agreement and found that the contractor was an employee under California law. Later that month, the California … Continue Reading

Conservative Kansas Joins the Liberal Ninth Circuit in Rejecting the Independent Contractor Classification of Delivery Drivers

Editor’s Note: This blog post is a joint submission with BakerHostetler’s Employment Class Action Blog. Last month we blogged about two Ninth Circuit opinions that deemed FedEx Ground drivers to be employees rather than independent contractors under California and Oregon law.  Last week the Kansas Supreme Court joined them, applying Kansas law to reach the … Continue Reading

Court Dismisses EEOC’s Attack on Severance Agreements, But Not on the Merits

The EEOC’s lawsuit against CVS, which alleged that the company’s severance agreements were impermissibly restrictive, has been dismissed, but not for the reasons employers would have hoped. EEOC v. CVS Pharmacy, Inc., No. 1:14-cv-863 (N.D. Ill. Oct. 7, 2014). On October 7, 2014, Judge Darrah released the Court’s written opinion granting summary judgment to CVS, … Continue Reading

NLRB Adopts New Test for Independent Contractor Misclassification, Applies it to Find FedEx Drivers are Employees Who Can Unionize

The NLRB has tossed a new vegetable into the enormous salad of independent contractor misclassification tests. As companies might expect, the new vegetable smells rotten. Companies who wish to analyze whether their non-employee workers are properly classified as independent contractors must now contend with a new NLRB test, in addition to the IRS Right to … Continue Reading
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