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The Ever-Changing Workplace

Proceed with Caution

August 22, 2014
The National Labor Relations Board has made it clear in recent years that they are committed to pushing the boundaries while enforcing the FLSA.  The Supreme Court decision in Noel Canning gave some hope that the NLRB might change its approach to seeking action against employers. Unfortunately, it looks like the NLRB and the President are both still extremely pro-employee and no support is in sight for employers.   Here are some issues that employers should be cognizant of as they move forward during the end of 2014. 
  1. Franchisor/Franchisee Relationship— Just a couple week ago, the NLRB found that McDonald’s USA could be considered a joint employer with its franchisees for unfair labor practices at  franchisee locations. This decision goes against a long history of case law which required a weighted test consisting of several clear components to find a franchisor to be a joint employer with its franchisees.  What this means for employers is that all franchise operations should be on alert as this could impact more than just restaurants.  It is still uncertain as to whether any courts would follow the NLRB’s charge to change longstanding guidelines, but as we’ve seen before, the NLRB doesn’t always follow the court unless it’s from the big Nine in Washington D.C.

  2. Wage and Hour Changes—The current administration has made it clear that they are seeking to make regulatory changes that will affect employee pay.  President Obama has used Executive Orders to make changes and push through legislation.  Changes have ranged from seeking a higher minimum wage to changing the requirements for exempt employees across the country.  Employers are going to need to be very cognizant of any internal activities that might make them targets for wage and hour claims.  Employers should make sure descriptions in their handbooks are clear on exempt and non-exempt employees.  Employers also need to be aware of any activities such as pay docking for missed days that might make employees look a little more like hourly and a little less like exempt employees. Employers need to note any changes to laws which might affect the minimum amount per week an employee must get to be considered exempt and decide whether to adjust status or salary levels. Finally, if you are working with government contracts, there are even more new changes that could apply to your business.  Be sure to speak to legal counsel about any changes you may need to make to comply.
Employers want to do what that they can to protect their organizations as these changes develop, but it is important to be smart and to thoroughly evaluate your options when dealing with these ongoing developments.  

Nicole Crump, JD, CIC
Director of Employment ADR
EDR Systems 

This information is purely the opinion of the writer and is not meant to be construed as creating an attorney-client relationship or as legal advice to any individual or business. Please consult your attorney if you need legal advice on the issues above.