The Library

The pro-union NLRB has struck again! In a high-profile case that had been pending before the Board for over two years, the Board, in a 3-2 decision, overruled 30 years of settled precedent and announced a new test to determine whether two entities could be considered “joint employers” under the National Labor Relations Act. Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015). As will be explained below, the Board concluded that a user employer did not have to exercise “direct and significant” control over the contractor’s employees to be considered a “joint employer.” Instead, it ruled […]

Until recently, the Department of Labor (DOL) interpreted the Fair Labor Standards Act (FLSA) to exempt from minimum wage and overtime pay those persons who provided “companionship services” (to the aged or infirm) [1] or were “live-in” domestic workers, [2] regardless who paid the domestic services worker. In 1975, the DOL issued regulations that applied these statutory exemptions to workers who were hired directly by families to work in their home and to employees placed in the home by third-party agencies. In 2014, the DOL sought to reverse course and issued new regulations that withdrew the exemption from those workers […]

We recently reported on new Guidance from the Department of Labor regarding its effort to combat what it views as the misclassification of workers as independent contractors, instead of employees. A new court decision makes it clear that even if a worker is correctly designated as an “independent contractor,” the business where s/he is assigned to work may nevertheless have liability under federal anti-discrimination laws under the “joint employer” doctrine. In a recent opinion,[1] the Fourth Circuit ruled that an employee assigned by a temporary employment agency to work at an automotive manufacturing plant could sue both the agency and […]

When you challenge the enforceability of a restrictive covenants in Virginia, the court is going to apply one of two standards. Either the court will closely scrutinize the restrictive covenant, if it is between an employer and employee, or the court is going to apply a more relaxed standard, if it was signed during the sale of a business. How does a Virginia court know which standard to apply? What happens if you sell a business but keep working as an executive? Will the court apply the sale of business standard because you sold the company, or will the court […]