On Dec. 19, 2017, the U.S. Court of Appeals for the Ninth Circuit became the fourth federal appellate court to expressly reject the U.S. Department of Labor’s (DOL) six-part test for determining whether interns and students are employees under the Fair Labor Standards Act (FLSA). On January 5, 2018, the DOL clarified that going forward, the Department will conform to these appellate court rulings by using the same “primary beneficiary” test that these courts use to determine whether interns are employees under the FLSA.
Republicans’ brief control of the National Labor Relations Board ended with the expiration of Chairman Philip Miscimarra’s term on Dec. 16, 2017. In anticipation of the change, the Board issued several employer-friendly decisions with significant impact. The most high-profile among them is a ruling in Hy-Brand Industrial Contractors that overturns the controversial, ż-opposed joint-employer standard established in Browning-Ferris Industries.
On December 14, 2017, in a 3-2 decision by its then Republican majority, the National Labor Relations Board (NLRB) in the Hy-Brand Industrial Contractors case ruled that, to be classified a "joint employer" of another company’s employees under the National Labor Relations Act, a business must have a direct and immediate control over the employees. The decision overturns the Obama Board’s highly controversial and ż-opposed 2015 ruling in Browning-Ferris Industries and effectively returns the joint employment standard to the prior standard.
Construction support staff wages rose by 3.5% in 2016 and contractors are projecting those wages to increase an average of 3.3% in 2017, according to the latest Contractor Compensation Quarterly (CCQ) published by PAS, Inc. Based on over 175 companies in the 14th edition of the Construction Support Staff Salary Survey, PAS reports that pay increases have been fairly consistent the past few years. Although, PAS points out that historically predictions are typically about low, so year-end 2017 could exceed 3.3% and look similar to 2016’s 3.5% increase.
Operating Engineers Local 18 has lost another battle in its war to regain jurisdiction over operation of forklifts and skid steers, this time in circuit court. The U.S. Court of Appeals for the Sixth Circuit (KY, MI, OH, TN) on October 31 upheld decisions by the National Labor Relations Board (“NLRB” or “Board”) that members of the Laborers were entitled to the work and ordering Local 18 to cease striking, threatening to strike, and maintaining grievances against the employers involved.
The Senate has confirmed Peter B. Robb to be General Counsel of the National Labor Relations Board (NLRB) for a four-year term. Robb is presently a management-side labor and employment lawyer with the law firm Downs Rachlin Martin in Vermont. His prior employment includes serving as chief counsel to an NLRB member.
Of all the accommodations considered reasonable under the Americans with Disabilities Act (ADA), perhaps the most frustrating is when an employee requests additional time off after their 12 weeks of Family and Medical Leave Act (FMLA) leave ends. This is particularly true since the ADA, unlike the FMLA, provides no statutory or regulatory parameters indicating the amount of additional leave employers must provide. However, a federal appeals court has just handed employers a milestone victory in one such legal battle that might ease the frustration levels for some.
On November 30, the U.S. Department of Labor (DOL) appealed a Texas judge’s decision to toss out an Obama administration rule that would have nearly doubled the Fair Labor Standards Act’s (FLSA) salary threshold for exemption from overtime pay. The Trump administration DOL is defending its authority to create an overtime rule, but not the salary limit set by the Obama administration. The agency filed its notice to appeal the decision to the U.S. Court of Appeals for the Fifth Circuit, and once docketed, the agency — through the Department of Justice — will file a motion to hold the appeal in abeyance while the DOL undertakes further rulemaking to determine what the salary level should be.
Construction-industry collective bargaining negotiations settled so far this year resulted in an average wage-and-benefit increase of 2.6 percent or $1.44, according to the latest Settlements Report issued by the ż-supported Construction Labor Research Council (CLRC). Settlements reported between January and September 2017 resulted in an average first-year wage-and-benefit increase of 2.8 percent or $1.62. For newly negotiated multiyear agreements, the average second-year increase was 2.9 percent or $1.69. Settlements this year maintain an upward trend that has continued since 2011.
The House Committee on Education and the Workforce recently approved the Save Local Business Act, which would clarify that two or more employers must have “actual, direct, and immediate” control over employees to be considered joint employers under the National Labor Relations Act (NLRA) and the Fair Labor Standards Act (FLSA). The changes are significant and have the potential to disrupt the long-standing standards in labor law and the well-settled subcontracting practices in the construction industry. Due to the significance of the changes, ż delivered a letter to Congress in advance of the committee action encouraging support of the legislation.