NLRB Says Franchisor & Franchisees Are Joint Employers

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Posted by Frank Cania, MSEmpL, SPHR – President of DRIVEN HR, LLC

[Author’s Note: Before you read further, please note that this article provides both facts regarding the NLRB ruling, and my opinions. I hope you will find it informative and enjoyable, regardless of whether we share the same opinions. In the worst case, we should agree to disagree and remains friends. Thank you. Frank-]

If the business community needed another reason to think the National Labor Relations Board (“NLRB”), or more specifically in this instance its General Counsel (“GC”), has a skewed view of the world, this ruling is certainly a great one.

Background & Highlights of the Issues

On Tuesday of this week, the NLRB General Counsel ruled that McDonald’s, with approximately 12,500 franchise locations in the United States, is a “joint employer” with its franchisees. If this ruling is allowed to stand, McDonald’s could be jointly liable for labor and wage-related violations alleged against its franchisees. Continue reading

Update: Bill to Repeal the Annual Wage Notice in NYS

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Posted by Frank Cania, MSEmpL, SPHR – President of DRIVEN HR, LLC

Over the last several days, I’ve had clients and colleagues contact me about the fate of the bill repealing the annual wage notice in New York State. I called a few people I know in Albany and got this update.

Background

On July 9th I posted an article titled, A Message to Governor Cuomo: Sign the Bill to Repeal the Annual Wage Notice. In that article I attempted to explain what happens to a bill when it is passed at the end of a legislative session in New York State. The State Senate and Assembly pass identical versions of a bill, it goes to the Governor for consideration, he can sign the bill into law, veto the bill outright, or let it sit on his desk until time expires and it becomes a “pocket” veto.  What was not clear at the time is that the bill does not automatically go to the Governor after it is passed by the Legislature. What seemed to be a very straightforward process is – not surprisingly – more complicated, and political. Continue reading

Crotch-grabbing Now A Protected Activity

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Posted by Frank Cania, MSEmpL, SPHR – President of DRIVEN HR, LLC

Before we get to the fun and interesting details of the crotch-grabbing incident (I couldn’t make this stuff up if I tried), a reminder: The National Labor Relations Act (“NLRA” or the “Act”) applies to non-union, as well as unionized workplaces. And, the National Labor Relations Board (“NLRB” or the “Board”) continues to aggressively expanding its application of the Act to non-union employers. (Now you can’t say I didn’t warn you.) This has been especially true for employer social media and at-will employment policies, as-well-as confidentiality policies and agreements. The common offense, according to the Board, is the “chilling” of employees’ rights to engage in concerted protected activities. Now it appears the Board has broadened its scope to include deciding what is, or in this case is not sexual harassment.

Background

For years I’ve stressed the importance of employers investigating all allegations of sexual and other forms of harassment. If the facts show some type of inappropriate, and/or actual harassing behavior, the offending employee should be appropriately disciplined. That’s not just some crazy idea I had while staring devotedly at a picture of Supreme Court Justice Antonin Scalia, it has been stated and reinforced by a number of courts and the Equal Employment Opportunity Commission (“EEOC”).  According to guidance published by the EEOC, “[w]hen an employer receives a complaint or otherwise learns of alleged sexual harassment in the workplace, the employer should investigate promptly and thoroughly…take immediate and appropriate corrective action…[and take disciplinary] action against the offending…employee, ranging from reprimand to discharge… Continue reading

Regulatory Nonsense or Performance Contradiction – You Be the Judge

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Posted by Frank Cania, MSEmpL, SPHR – President of DRIVEN HR, LLC

Full and fair disclosure; before you start reading this post you should know that the senselessness I’ll be discussing directly impacts an extremely small number of public agencies (small counties, cities, etc.)  However, this post is still worth reading because there is a broader, somewhat disturbing point that may apply to all of us from time-to-time.

Background

The HR director from “Beautiful Village” recently sent me an email with a leave-related question.  I was happy to answer the question and added, “and don’t forget the Family and Medical Leave Act (“FMLA”) may apply as well.”  In her reply she stated, “Beautiful Village doesn’t employ 50 people so the FMLA doesn’t apply.”  Because we have a few public agency clients, I knew there was a special rule regarding FMLA coverage for government employers like Beautiful Village, but what was it?   Continue reading

New Enforcement Guidance on the Pregnancy Discrimination Act Stirs Controversy at the EEOC-Part 2

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Posted by Frank Cania, MSEmpL, SPHR – President of DRIVEN HR, LLC

In my last post I provided background on the Pregnancy Discrimination Act of 1978 (“PDA”), and the PDA Enforcement Guidance recently issued by the Equal Employment Opportunity Commission (“EEOC”).  I also discussed the controversy that was created when two of the five EEOC Commissioners, Constance S. Barker and Victoria A. Lipnic, filed statements expressing their dissent from the Commission’s adoption of the new Guidance.  Their criticism seems especially accurate in light of the fact that the US Supreme Court has agreed to hear a case, Young v. United Parcel Service, Inc., which – depending on the Court’s decision – may make the new Guidance moot.  And finally, I pointed out that, in the absence of such a decision, this EEOC Guidance clearly and dramatically expands the rights of employees under the PDA.

Employer Compliance Points

Setting aside the controversy, and the upcoming Supreme Court case, there are a few important points employers should take from the new Guidance: Continue reading

New Enforcement Guidance on the Pregnancy Discrimination Act Stirs Controversy at the EEOC-Part 1

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Posted by Frank Cania, MSEmpL, SPHR – President of DRIVEN HR, LLC

I hate to admit it, but there’s a little part of me that enjoys learning about internal conflict and disagreement at a regulatory agency like the Equal Employment Opportunity Commission (“EEOC”). But, it’s not about the inevitable gossip or a desire to see even more dysfunction in the government.  It’s about ensuring the people in charge are engaged and not just mindlessly rubber stamping decisions on important issues – or at least standing up and making some noise when their peers are taking questionable actions.  The latest case in point, two EEOC Commissioners have issued harsh dissents on the Enforcement Guidance regarding the Pregnancy Discrimination Act (“PDA”) released by the EEOC on July 14, 2014.

Background

The PDA was enacted in 1978, with the intention of making a clear statement that discrimination based on pregnancy, childbirth, or related medical conditions is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (“Title VII”).

The new EEOC Guidance, the first update in 30 years, sets out the fundamental PDA requirements: Continue reading

Three Important FMLA Lessons For Employers

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Posted by Frank Cania, MSEmpL, SPHR – President of DRIVEN HR, LLC

I decided to stick with a theme this week, and the winner is…the Family and Medical Leave Act! Affectionately known as FMLA, this law continues to be confusing, and a source of frustration for employers. Why? Because it’s a confusing and frustrating law to understand and administer. (I’ll bet you were anticipating some earth shattering explanation, weren’t you?)

A recent case out of the US Court of Appeals for the 7th Circuit, Gienapp v. Harbor Crest and Myra Chattic, is a great example of the confusion surrounding FMLA-qualified leave to care for an adult child.

Background

Suzan Gienapp was employed by Harbor Crest, a residential nursing care facility. In January of 2011, Gienapp notified her manager, Myra Chattic that she needed time off to care for her daughter, who was receiving treatment for thyroid cancer. Gienapp submitted the necessary paperwork – without an expected return-to-work date – and her request for FMLA leave was granted. To further complicate the issue, the medical certification submitted by the daughter’s physician indicated that the time for recovery was uncertain and that Gienapp’s daughter would likely need assistance through at least July 2011. Continue reading