Todd Lebowitz

Ten Things That Should Be in Your Staffing Agency Agreements But Probably Aren’t

By Todd Lebowitz on March 13, 2023 Posted in Temporary Labor

Retaining temporary labor can be convenient for your business, but the retention introduces new legal risks. Under a joint employment theory, your company can be 100% legally liable for errors made by a staffing agency. You could be sued by temps in a class action. Simple indemnity clauses are not enough. For more on how … Continue Reading

Not Your Godfather’s Smackdown: Joint Employer Test Must Consider ‘Reserved or Indirect Control,’ D.C. Circuit Rules

By Todd Lebowitz on August 1, 2022 Posted in NLRB

In 2009, the James Brown compilation album The Godfather’s Smackdown, Live! was released. It’s a two-disc compilation of live shows from 1980. I never saw James Brown live, but I did see James Brown’s Celebrity Hot Tub. On Friday, the D.C. Circuit Court of Appeals issued a different kind of smackdown, chastising the National Labor … Continue Reading

New DC Law Protects Marijuana Users from Adverse Employment Actions

By Katherine Ondeck Kent and Todd Lebowitz on July 25, 2022 Posted in Policies

Washington, D.C., employers will soon be prohibited from disciplining, terminating or refusing to hire individuals based on marijuana use or a positive marijuana test. The Cannabis Employment Protections Amendment Act of 2022 will take effect on July 13, 2023, or shortly thereafter. The law, however, contains a few exceptions. Employers will not be in violation … Continue Reading

Against the Odds: Did a Court of Appeals Just Grant Independent Contractors the Right to Strike and Organize?

By Todd Lebowitz on April 11, 2022 Posted in Independent Contractor

On June 4, 1923, jockey Frank Hayes rode 20-1 long shot Sweet Kiss to victory at Belmont Park. While that seems impressive, what made the win even more memorable is that at some point during the race, poor Frank died. He somehow stayed on the horse and ended up in the winner’s circle. Or six … Continue Reading

Welcome to Turkmenistan: Joint Employment Rules Rescinded, Leaving Massive Crater in FLSA Regulations

By Todd Lebowitz on July 29, 2021 Posted in Wage and Hour

No visit to Turkmenistan would be complete without a visit to the Darvaza Crater, more commonly known as the Door to Hell. This massive crater formed decades ago after a Soviet drilling rig collapsed. Roughly 40 years ago, the Soviets lit the crater on fire to burn off the methane. But Turkmenistan has some of … Continue Reading

New NYC Law Requires Two-Step Background Checks and Expands List of Pre-Adverse Action Factors

By Priya Amin and Todd Lebowitz on July 26, 2021 Posted in Background Checks

The New York City Fair Chance Act (FCA) amendments expand protections for individuals with a criminal record and impose new obligations on employers that conduct background checks. The changes take effect July 29, 2021. The amendments require most background checks to be conducted in two steps,[1] provide “complete protection” for non-convictions and add specific FCA … Continue Reading

Breaking News? DOL Rescinds Independent Contractor Rule That Never Took Effect

By Todd Lebowitz on May 6, 2021 Posted in Independent Contractor

Remember when TV news was on at 6 p.m. and 11 p.m. and that was it? Every once in a while, there would be a Breaking News! alert, and it was always something really important. They wouldn’t interrupt Diff’rent Strokes for just anything. (Bonus points if you remembered there was an apostrophe in the title … Continue Reading

Schrödinger’s Cat? Ninth Circuit Disrupts Trucking Industry with Contractor Misclassification Ruling

By Todd Lebowitz on May 3, 2021 Posted in Independent Contractor

Have you heard of Schrödinger’s cat? It’s not a real cat, like Felix or Brian Setzer. It’s a hypothetical, seemingly impossible cat that exists only in the world of quantum physics. Schrödinger’s cat refers to a thought experiment in which a cat in a box is simultaneously alive and dead, until you open the box … Continue Reading

Illinois Enacts New Background Check Requirements

By Bonnie Keane DelGobbo and Todd Lebowitz on March 24, 2021 Posted in Background Checks

Background check compliance has been a technical minefield for years. Federal, state and local requirements differ, meaning that multistate employers have a lot to keep track of. Illinois just planted a new landmine. Amendments to the Illinois Human Rights Act impose new requirements on employers conducting background checks in Illinois. Governor Pritzker signed the bill … Continue Reading

Employers May Need to Update Their Severance
Agreement Templates by April 1

By Todd Lebowitz on March 22, 2021 Posted in Wage and Hour

Acronyms make us do things. AWOL makes us go looking for someone, BOGO makes us buy two of something we didn’t need one of, and NSFW makes us cover our screen and hope no one has already walked by. The new COVID-19 relief bill requires acronym-based action too. ARPA made changes to COBRA, so employers will … Continue Reading

Snapshot or Long Exposure? Dep’t Of Labor Approves New IC Test … For Now

By Todd Lebowitz on January 6, 2021 Posted in Department of Labor, Independent Contractor, Wage and Hour

This octopus in New Zealand has been trained to take photos of visitors to the Sea Life Aquarium. That’s a pretty neat trick. I’m sure the visitors love it and will pay whatever exorbitant fee the aquarium charges to profit on the back of its cephalopod slave labor, but will the photos last? Do the … Continue Reading

Whaddaya Call It? DOL Proposes New Independent Contractor Test

By Todd Lebowitz on September 23, 2020 Posted in Independent Contractor

Soda or pop? Pill bug or roly poly? What you call things depends on where you live. In 2014, the New York Times published this 25-question dialect quiz that will tell you, with startling accuracy, where you or your parents are from. The test is fun, and you can see how words and dialects vary … Continue Reading

Joint Employment Test Gets Muddied Again: Federal Court Rejects New DOL Test

By Todd Lebowitz on September 9, 2020 Posted in Department of Labor

Muddy Waters is how you want your blues, not how you want your laws. A federal district judge in New York yesterday kicked up a lot of mud in an area of the law that had finally seen some clarity – the definition of “joint employment.” Now we’re back in the muck. Yesterday’s ruling struck down … Continue Reading

Something Is Rotten in the State of California? Ride Share Misclassification Ruling Is Merely Act I

By Todd Lebowitz on August 13, 2020 Posted in California

“To be or not to be” are the opening words of a soliloquy by Prince Hamlet. With that, I have exhausted what I remember about Shakespearean plays without consulting Wikipedia. Having consulted Wikipedia, I can confirm that this soliloquy occurs in Hamlet, Act III, Scene 1. A lot happens in Act III and beyond, and … Continue Reading

Gator in Your Basement? Nope, That’s Just the NLRB Sharpening Its Joint Employer Test

By Todd Lebowitz on March 3, 2020 Posted in National Labor Relations Board

“Be careful as you go down the stairs, officer. An alligator lives in my basement.” Police in Madison Township, Ohio, last week found a 5-foot gator penned in the basement of a family home. The family said that “Alli” was a pet they’ve raised for 25 years, since purchasing him as an adorable little tot … Continue Reading

Bring Forth the Tiger-Dogs! Here’s a Quick Status Check on the Challenges to California’s New Independent Contractor Law

By Todd Lebowitz on February 10, 2020 Posted in Independent Contractor

When outside forces pose a threat to people’s livelihood, people will go to great lengths to fight back. For example, when monkeys began ravaging the crops of a farmer in Karnataka, India, the imaginative farmer painted his dog to look like a tiger, to scare away the pesky invaders. [Photo here.] Business owners in California … Continue Reading

What Is Joint Employment? New DOL Rules Take Effect in 60 Days

By Todd Lebowitz on January 13, 2020 Posted in Department of Labor

This week’s post is Family Feud Style. Name Three Things That Sound Like They Would Be “Joint Employment” But Are Not: 1. Long-haired, easy-going product tester at the local wacky tobacky dispensary. 2. Note taker at an orthopedist’s office. 3. The guy on radio ads for non-approved supplements claiming to relieve joint pain who says – … Continue Reading

Not Dead Yet: The States’ New Strategy for Attacking Independent Contractor Misclassification Can Be Relentless — and Costly.

By Todd Lebowitz on November 20, 2019 Posted in Independent Contractor

For years, state governments have claimed they were losing hundreds of millions of dollars in unpaid withholdings as a result of independent contractor misclassification. Now, one state is making a grab for a massive piece of that pie — all at once. On November 12, the state of New Jersey sent a bill to Uber … Continue Reading

Background Check Disclosures with State Law Information Are Illegal, Ninth Circuit Declares in Class Action Case

By Todd Lebowitz on February 1, 2019 Posted in FCRA

Check your background check disclosure forms. Now. The Ninth Circuit has now declared that background check disclosure forms that include state law disclosures are illegal. Gilberg v. California Check Cashing Stores, LLC, Case No. 17-16263 (9th Cir. Jan. 29, 2019). Read more.… Continue Reading

What Is the State of Joint Employment?

By Todd Lebowitz on October 7, 2018 Posted in Department of Labor, National Labor Relations Board

Each January, the President gives a State of the Union Address to a joint session of Congress. Throughout the speech, as the President touts his agenda and vision, half the audience cheers wildly, while the other half makes frowny faces. All the while, members of the Supreme Court sit stone-faced, internally cheering or wincing but … Continue Reading

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

By Todd Lebowitz on June 7, 2017 Posted in Independent Contractor

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!

By Todd Lebowitz on May 19, 2017 Posted in Independent Contractor

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?

By Todd Lebowitz on January 30, 2017 Posted in 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

Los Angeles Joins Ban the Box Movement

By Todd Lebowitz and Jeffrey Bils on December 27, 2016 Posted in Background Checks, California

Los Angeles has become the latest city to ban private employers from asking job applicants about their criminal histories before offering a job. With its Fair Chance Initiative for Hiring, the city joins San Francisco, New York, Chicago, and about two dozen other cities, counties and states in enacting Ban the Box measures to promote … Continue Reading