ECBM's Blog: Information To Protect What You Grow

On April 1, 2019, the Department of Labor proposed a new regulation, and it wasn’t an April Fool’s joke. The new regulation would seek to update the Department’s sixty year old test for determining joint employer relationships under the Fair Labor Standards Act. It is worth noting that this is different from the long running dispute over the joint employer test decided by the National Labor Relations Board as a part of its 2013 ­Browning-Ferris decision. This new rule would apply to allegations that employers had failed to pay their workers legally obligated wages under the Fair Labor Standards Act.  Joint employers would be jointly and severely liable for any ordered back pay.  

The Fair Labor Standards Act sets national standards for wage and hour issues related to employees. The law empowers the Department of Labor to set eligibility standards for overtime pay as well as a series of exemptions for it. On March 7th, 2019, the Department of Labor issued a Notice of Proposed Rulemaking that will change those eligibility standards significantly.

The Fair Labor Standards Act sets national standards for wage and hour issues related to employees. The law empowers the Department of Labor to set eligibility standards for overtime pay as well as a series of exemptions for it. Employees who qualify for overtime under the law receive time-and-a-half pay for hours worked more than forty hours a week. Time-and-a-half pay is a 50% increase to the employee’s “regular rate of pay.”

The increased ability to use biometric data for a variety of purposes has the potential to improve security and privacy in the cyber world significantly. Voice recognition software, fingerprint IDs, facial recognition software are all touted as ways of preventing unauthorized access to computer systems and improving security.

Trucking companies got terrible news from the Supreme Court recently on the employment practices front. The Court invalidated the use of mandatory arbitration and waiver of class action lawsuits in the trucking industry. The ruling came despite numerous rulings in recent years upholding the validity of these practices outside the trucking world and was rendered unanimously.

 High cost for Businesses Misclassification

California continues its aggressive moves to protect truck drivers and crack down on misclassification of workers as independent contractors.  The California Labor Commission opened 2019 by awarding 24 drivers who work at the Port of Los Angeles and Port of Long Beach almost six million dollars in compensatory damages in two separate.  Additionally, the Labor Commission held the manager of the 24 drivers personally liable under California law for the damages.  The decision is major sign of California’s ongoing intent to crack down on these issues. 

The opioid epidemic, besides its unfathomable human costs, has had large economic costs for businesses and governments who must manage workers compensation costs. Opioid prescriptions in the wake of workplace injuries have been linked to higher workers compensation payouts and longer layoffs before injured employees return to work. Facing the bill for these costs, government, citizens, and private entities have filed a veritable avalanche of lawsuits against pharmaceutical companies for their manufacture and marketing of opioid based painkillers.

In 1986, responding to a host of industries that struggled to find acceptable coverage in the traditional insurance marketplace, Congress passed the Liability Risk Retention Act.  The Act authorized the creation of risk retention groups – liability insurance companies owned by its members.  Entities in an industry suffering through a liability crisis can form a risk retention group to provide them with the coverage they need when the wider insurance market is unwilling to. 

The #MeToo movement is proving how social media affects the workplace, in this case the culture. While some commentary is concerned with the validity of claims or support of victims, there is no question that it has significantly increased the pressure on employers to prevent sexual harassment in the workplace. Many employers have responded by increasing workplace training and updating their employment policies.

The classification of workers as independent contractors or employees continues to draw aggressive state action. These classifications can significantly impact a host of employment-related areas, but the reason why states involve themselves so much in these determinations often center around taxation issues. To this end, New Jersey recently updated its regulations to make it significantly harder for companies seeking an exemption from unemployment taxes to classify their workers as independent contractors, and it will have a big impact on trucking companies.