Pautsch, Spognardi & Baiocchi Legal Group LLP
Monday Morning Minute
In This Issue
QUIZ: HR Developments
Joint Employer Doctrine News
                  November 19, 2018


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As the mid-terms have finally passed and year-end approaches, it's a good time to do a check-up on your knowledge of the fast-changing events in the labor and employment law arena. We have developed a short quiz to allow you to do this-------answers in next week's MMM!
1.       The National Labor Relations Board now has pro-management majority of 3-1. 
2.       President Trump has been able to replace a majority of the Regional Directors of the NLRB.

3.       A federal law has been passed that negates the effects of future state and local minimum wage raises effective July 1, 2018, so there is no need to keep track of such changes.

4.       The NLRB issued a decision in December, 2017 establishing a tough new standard for "joint-employer" analysis that will make it much more likely that franchisees will be considered as joint employers with their franchisors.

5.       Four states repealed 'right to work' laws in 2018 establishing a trend away from such laws. 

6.       The majority of the judges in the US Circuit Courts of Appeal have been appointed by GOP Presidents.

7.       The US Senate broke a record in the number of judges confirmed to the US Courts of Appeals during the first 21 months of the Trump administration.

8.       New York state passed a law, effective January 1, 2018, which provides for paid sick leave for most employees employed in the state.

9.       The NLRB issued a decision in December, 2017 greatly expanding the scrutiny of employee handbook provisions that infringe of employees' right to engage in protected concerted activity.

10.   Now that the House of Representatives is in the hands of Democrats it will be difficult for President Trump to confirm judges for the federal courts and make appointments to the NLRB.
Hope you do well with the quick quiz! 
Despite efforts by NLRB deep state interests to thwart the overturning of the Obama Board's joint employer chicanery, the NLRB Inspector General David Berry has cleared NLRB Board Member William Emanuel to participate in the rulemaking process to restore balance to the NLRB's joint employer doctrine.
The Obama-era Labor Board, in Browning-Ferris, overruled decades of precedent in finding that one employer could be a joint employer with another putative employer, and thus liable for obligations and penalties, by having "potential control", rather than "actual' exercise of control over matters involving the terms and conditions of those employees.  This doctrine is especially crucial for franchise business models, from fast-food to eye-wear, for it can saddle the franchisor and franchisee with the others' legal sins and obligations, despite the separate legal immunity accorded entities under 150 years' of franchise law.
Earlier in 2017, the Browning-Ferris decision was overruled to return the well-established pre-Obama Labor Board precedent.  This decision was vacated based upon that NLRB Inspector General's determination that Board Member Emanuel suffered from a conflict of interest, based upon previous legal representation by his law firm years before.
Subsequently, the NLRB voted to engage in rulemaking to determine the proper standard for application and liability determinations under the joint employer doctrine.  This month, Bloomberg  Law reported that Board Member Emanuel has been cleared to participate in this rulemaking process.   The forecast is that the rulemaking process will now move forward and we should see a final rule in 2019.
The comment period for rulemaking has been extended to December 13, 2018.  Contact any PSB attorney if you would like assistance in presenting your organization's comments to the National Labor Relations Board.          

PAUTSCH, SPOGNARDI & BAIOCCHI LEGAL GROUP is a law firm dedicated to finding common sense, affordable solutions for businesses to labor, employment, human resource and general business needs. With over 75 combined years of experience among its 3 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues.  And as litigators, who combined have over thousands of trials  "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner. 


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