McDonald’s Not a Joint Employer, Court Finds

In  a case with potentially sweeping implications for franchise operators everywhere, the 9th U.S. Circuit Court of Appeals — arguably the most liberal in the country — sided today with corporate behemoth McDonald’s against employees claiming it was responsible for what its franchisees did on the wage-and-hour front, ruling that it was not a joint employer.

mcdonalds-faces-strike-over-harassment-claimsThe case traces back several years to the Obama National Labor Relations Board (NLRB), which opined that McDonald’s and other corporate franchisers like it were joint employers with their franchisees, responsible for what those franchisees did vis-a-vis their employees. This official opinion thus turned on its head the longstanding understanding that a corporate entity must have “direct control” over its affiliates in wage-and-hour decisions to be held liable.

In Salazar v. McDonald’s Corp., employees had filed a class action alleging that they were denied overtime premiums, meal and rest breaks, and other benefits in violation of the California Labor Code. Plaintiff class members worked at franchises in the Bay Area operated by the Haynes Family Limited Partnership.

“Although there was arguably evidence suggesting that McDonald’s was aware that [the franchisee] was violating California’s wage-and-hour laws with respect to [the franchisee’s] employees,” the court wrote, “there was no evidence that McDonald’s had the requisite level of control over plaintiffs’ employment to render it a joint employer under applicable California precedents.”

(more…)


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
GoTo top Top

DOL’s PAID Program Nets 7,500 Employees Back Wages

Since its launch as a trial initiative in April 2018, the Payroll Audit Independent Determination (PAID) program of the Department of Labor (DOL) has witnessed 74 employers voluntarily step forward to award back wages to some 7,500 employees to the tune of $4 million.

DOL-launches-voluntary-FLSA-violation-reporting-programPAID is an employer self-audit program. If a company audit turns up unpaid wages or overtime, the company can enter into the PAID program, where Wage and Hour Division (WHD) staff will help arrange repayment.

The division claims that program takes half the time and staffing resources of other compliance actions but yields ten times the back wages for employees per staff hour.

Critics from the start have derided the program as a vehicle for employers to weasel out of potential fines and other expenses and punishments.

Proponents, however, see it as a more expeditious and less onerous process for resolving wage-and-hour issues.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
GoTo top Top

EEOC Sues Walmart for Sexual Harassment

Wal-Mart Stores East, LP (Walmart) violated federal law when it allowed a male employee at its Geneva, N.Y. Walmart Supercenter to sexually harass a female co-worker for years, the Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed this past Friday.

walmart-sued-for-sexual-harassmentAccording to the EEOC’s lawsuit, from 2014 to 2018 a Walmart employee regularly made unwelcome sexual comments and advances to a female co-worker.

The EEOC alleges that the male employee regularly made vulgar comments about his co-worker, including numerous remarks about how “good” she looked. The male employee repeatedly invited his female co-worker to meet with him alone and told her he wanted to have sex with her even though she told him she was not interested.

(more…)


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
GoTo top Top

Association Retirement Plans (ARPs) Take Effect Today

A final rule issued by the Department of Labor (DOL) in July allowing for companies to more easily establish Multiple-Employer Plans (MEPs) to offer retirement benefits takes effect today, Sept. 30.

association-retirement-plans-take-effect-Sept.-30The Trump DOL is now calling these collective efforts Association Retirement Plans (ARPs), explaining:

Under the rule, ARPs could be offered by associations of employers in a city, county, state, or a multi-state metropolitan area, or in a particular industry nationwide. In addition to association sponsors, the plans could also be sponsored through Professional Employer Organizations (PEOs). A PEO is a human-resource company that contractually assumes certain employment responsibilities for its client employers.

A survey by the Pew Charitable Trusts found that only 53 percent of small- to mid-sized businesses offer a retirement plan; 37 percent of those not offering a plan cited cost as a reason.

(more…)


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
GoTo top Top

Tesla and Elon Musk Chided for Violating Labor Law

California Administrative Law Judge Amita Baman Tracy has ruled that Tesla — and founder Elon Musk — violated the National Labor Relations Act (NLRA) numerous times in 2017 and 2018 by threatening workers who sought to unionize.

tesla-being-investigated-for-safety-violations-by-cal/oshaA Musk tweet in May 2018 maintained: “Nothing stopping Tesla team at our car plant from voting union. Could do so tmrw if they wanted. But why pay union dues and give up stock options for nothing?” In short, he threatened to cancel a program awarding stock options to employees if they unionized.

The Sept. 27 ruling also found Tesla in violation of the NLRA by prohibiting employees from distributing leaflets in their off-hours in the plan’s Fremont parking lot. Judge Tracy also ordered the company to reinstate and compensate one employee who had been unlawfully fired for being involved in union activities.

The ruling also calls for the company to hold a meeting at its assembly plant that Musk must attend.

(more…)


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
GoTo top Top

EEO-1 Pay Data Portal to Remain Open After Deadline

UPDATE: On Oct. 8, the EEOC sought court permission to close the pay data collection, reporting that 75.9 percent of potential filers had submitted their data. The plaintiffs in the original lawsuit that reopened the collection process claim the effort is not complete until 98.25 percent submit data. The presiding judge has yet to rule.

The collection of pay data from firms required to submit the EEO-1 Report annually will continue past its deadline of today, Sept. 30, until it reaches its “target response rate,” the Equal Employment Opportunity Commission (EEOC) told the court supervising the program on Sept. 27.

In its most recent required status report for the court, and also in an announcement on the Component 2 filing website, the EEOC said:

… so long as the Court’s order is in effect stating that the collection will not be complete until it reaches what the Court has determined to be the target response rate, the EEOC will continue to accept Component 2 data for 2017 and 2018. EEO-1 eligible employers should continue to submit and certify their Component 2 EEO-1 reports for 2017 and 2018 as soon as possible.

As of Sept. 25, the EEOC said that 39.7 percent of eligible filers had completed submission of the required pay data.

Who Must Submit Data? (more…)


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
GoTo top Top

OSHA Revives Beryllium Standard, Won’t Repeal It

The Occupational Safety and Health Administration (OSHA) has finalized its June 27, 2017, proposal to revise the construction and shipyards standards for beryllium.

workplace-violence-falls-under-general-duty-clauseIn the final rule, to be published on Sept. 30, 2019, OSHA:

  • Does not implement the proposal to revoke all of the standards’ ancillary provisions; but
  • Extends the compliance dates for the ancillary provisions to September 2020 to account for OSHA’s new proposal to revise or remove specific provisions; and
  • Maintains enforcement of the permissible exposure limit.

In a forthcoming rulemaking, OSHA will publish a proposal to amend the beryllium standards for construction and shipyards by more appropriately tailoring the requirements of the standards to the exposures in these industries. The proposed changes would maintain safety and health protections for workers, facilitate compliance with the standards, and increase cost savings, according to OSHA.

Summary: OSHA initially planned to scrap safety rules protecting construction and shipyard workers from beryllium exposure because, as critics pointed out, other OSHA standards already provided such protection, but with this announcement the agency has reversed course and will retain the beryllium standard from the Obama administration, while extending the compliance deadline.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
GoTo top Top

Top 10 OSHA Violations Previewed

At the National Safety Council (NSC) meeting this month, the annual list of the Top 10 Violations by the Occupational Safety and Health Administration (OSHA) were previewed by Patrick Kapust, deputy director of OSHA’s directorate of enforcement programs.

The Top 10 for FY 2019* are:

  1. Fall Protection – General Requirements (1926.501) — 6,010
  2. Hazard Communication (1910.1200) — 3,671
  3. Scaffolding (1926.451) — 2,813
  4. Lockout/Tagout (1910.147) — 2,606
  5. Respiratory Protection (1910.134) — 2,450
  6. Ladders (1926.1053) — 2,345
  7. Powered Industrial Trucks (1910.178) — 2,093
  8. Fall Protection – Training Requirements (1926.503) — 1,773
  9. Machine Guarding (1910.212) —  1,743
  10. Eye and Face Protection (1926.102) — 1,411

*Preliminary figures as of Aug. 15, 2019


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
GoTo top Top

Scalia Confirmed as Labor Secretary

UPDATE: Eugene Scalia was sworn in as Labor Secretary on Monday, Sept. 30, 2019.

Much to the chagrin of the opposition party, Republicans in the Senate today approved the nomination of Eugene Scalia, son of the late Supreme Court conservative icon Antonin Scalia, to become Department of Labor (DOL) Secretary.

The vote was along pure party lines, 53-44.

eugene-scalia-nominated-to-dol-head

Eugene Scalia

Scalia, who has often allied himself with the U.S. Chamber of Commerce as a labor lawyer, was instrumental in killing the Obama-era fiduciary rule, which is now being revived by both the DOL and the Securities and Exchange Commission (SEC), whose “best interest” rule became effective this week.

Scalia, during the George W. Bush administration, served as the third-highest ranking official in the department as solicitor.

“[O]nce at the department, I had new clients, new responsibilities and, above all, I had a public trust,” he said in his confirmation hearing, referring to his work at the agency as solicitor. “I am proud of the actions I took before as a solicitor to further the department’s mission.”

(more…)


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
GoTo top Top

Facebook Ad Targeting Ensnares 7 Companies for Employment Discrimination

Following a decision it reached today, the Equal Employment Opportunity Commission (EEOC) said it is reaching out to arrange settlements with seven companies that it found used targeting in Facebook ads to discriminate against hiring women and older users.

facebook-accused-of-housing-discriminationThe EEOC said it found “reasonable cause” to believe that the seven violated Title VII of the Civil Rights Act or the Age Discrimination in Employment Act (ADEA) by limiting the audience of their employment ads to male and younger potential applicants.

The decision stems from lawsuits filed in late 2018 by the American Civil Liberties Union (ACLU) and the Communications Workers of America (CWA) that claimed the companies used Facebook’s targeting mechanism to deliver job ads to male users only.

The seven companies, still facing lawsuits, are Capital One, Edward Jones, Nebraska Furniture Mart, Enterprise Holdings, Renewal by Andersen, Drive Time Auto and Sandhills Publishing.

Facebook was also sued and settled with the ACLU and EEOC in March, agreeing to “sweeping changes” to its advertising platform. The social media giant said it would develop a separate advertising portal for housing, employment and credit that would not allow for discriminatory targeting. Those changes were completed in July.

The Department of Housing and Urban Development (HUD), also in 2018, accused Facebook of discriminatory housing ads, which led to the inclusion of that category in the new advertising tool.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
GoTo top Top