- Written by Greg Blueford
On July 15, 2015 the Department of Labor (“DOL”) issued guidance that defines an “independent contractor” narrowly enough that many of those that were previously classified as independent contractors will now be classified as employees. The re-classification is partly due to the DOL deemphasizing the degree to which a business controls an individual work and instead is now focusing on whether the worker is economically dependent on the employer or is in business for themselves.
The DOL noted six factors that an employer should consider to before classifying a worker as either an employee or independent contractor:
• Extent to which work performed is an integral part of employers business.
• Worker’s opportunity for profit or loss depending on his or her managerial skill.
• The extent of the relative investments of the employer and the worker.
• Whether the work performed requires special skills and initiative.
• The permanency of the relationship.
• The degree of control exercised or retained by the employer.
- Written by Carl Larson
A challenge to the new ambush election rules promulgated by the National Labor Relations Board (“NLRB”) brought by business groups and the U.S. Chamber of Commerce lost this week in the D.C. Circuit Court of Appeals. This follows a previous challenge to the rules by a group of business groups in Texas which was defeated June 2, 2015 and is currently on appeal to the Fifth Circuit Court of Appeals. These legal challenges follow a failed attempt by the GOP to block the rules from going into effect in early March, which was vetoed by President Obama.
The ambush election rules dramatically “streamline” the process of elections and shorten the time between when a putative union requests an election and the election itself. Employers, business groups, and chambers of commerce are upset because it dramatically limits the ability of a company to get its own message and position on unionization out before polling. While Union organizers will have had weeks, months, or maybe even years to communicate with employees and sell them on unionization, once a request for an election has been filed an employer has less than 10 days to get its own message out. An election could occur in as few as 11 days after a union files a petition. Additionally, the new procedural rules make it very easy for employers to accidentally forfeit certain rights and defenses should they not strictly adhere to the rules’ requirements.