The DOL has started to implement its pro-business policies, which should create a better environment for businesses. Although it took the DOL some time to hit its stride, we are now seeing some key policies being implemented.
On Wednesday, June 7, 2017, the U.S. Department of Labor (US DOL) issued a three sentence statement trumpeted by national news and happily noted by many employers. The recently-confirmed Labor Secretary, Alexander Acosta, personally announced that he has withdrawn the US DOL'S two Interpretations on two key legal issues worrying many businesses: joint employment and independent contractors.
The Department of Labor is expanding the applicability of joint employment to apply "expansively" even beyond traditional definitions and interpretations of who or what is a joint employer. The DOL states that this interpretation is an attempt to keep up with the increasing popularity of non-traditional employment relationships such as the use of staffing agencies and independent contractors and the declining use of "traditional" employment relationships. Employers must evaluate their potential status as joint employers to avoid potential liability. Under the FLSA, if an employee is jointly employed by two or more employers, all the employee's weekly hours worked for every joint employer must be considered when computing minimum wage and overtime pay. Further, each and every joint employer of an employee is jointly and severally liable for any violations of the FLSA (meaning one employer, usually the one with the "deepest pockets", may be forced to pay an entire judgment or award though other employers were also at fault for the violations).
The first "nail in the coffin" in doing away with the franchiser/franchisee relationship and jeopardizing a vast number of small business operators in this country (estimated at a little over 85% in the restaurant industry), has been "nailed" by the National Labor Relations Board (NLRB) General Counsel. Robert F. Griffin, Jr., who was sworn in for a four (4) year term as General Counsel of the NLRB on November 4, 2013 and, as an aside, was a NLRB member from January 9, 2012 through August 2, 2013, has issued notifications to various NLRB Regional Offices that they are authorized to proceed with forty-three (43) complaints of Unfair Labor Practices against not only the franchisees of the locus of the dispute but, as well, against McDonald's, USA as a "joint employer." While there were a vast number of complaints filed against McDonald's franchisees and McDonald's since November 2012 (a total of 181 complaints), in his own authoritative way, General Counsel Griffin has authorized not only the issuance of the aforementioned forty-three (43) complaints but continuing investigation of sixty-four (64) other cases by his office to see if complaints should issue in these cases.