Photo of Betty S.W. Graumlich

Betty S.W. Graumlich

Subscribe to Betty S.W. Graumlich's Posts
Contact:Read more about Betty S.W. Graumlich

On October 26, 2023, the National Labor Relations Board issued a final rule to replace and essentially reverse the joint employer test issued under the Trump Administration. The new test drastically lowers the standard for companies to qualify as joint employers, making them responsible for labor violations and saddling them with obligations with respect to union negotiations. The final rule, which rescinds and replaces the prior regulation, is set to take effect on December 26, 2023, on a prospective basis only.

The 2020 rule required that a company have “substantial direct and immediate control” over the “essential terms or conditions” of a worker’s employment in order to be held liable as a joint employer. In a major “about face”, the new rule provides that even reserved, unexercised, or indirect control, such as through an intermediary, over one or more terms or conditions of employment is sufficient to establish joint employment. The Board published an “exhaustive list” of seven categories of terms or conditions that it will consider “essential” for purposes of the joint employer inquiry:

  • Wages, benefits, and other compensation;
  • Hours of work and scheduling;
  • Assignment of duties to be performed;
  • Supervision of the performed duties;
  • Work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline;
  • Tenure of the employment, including hiring and discharge; and
  • Working conditions related to the safety and health of employees.

Continue Reading NLRB Issues Final Rule Replacing Joint Employer Test

On August 30, 2023, the U.S. Department of Labor (DOL) proposed a regulatory rule that would raise the minimum salary threshold for employees who are classified as “exempt” under the white collar exemptions to the Fair Labor Standards Act (FLSA) by nearly 55 percent. The proposed rule would also create a new mechanism for subsequent…

Beginning August 1, 2023, the U.S Department of Homeland Security and U.S. Citizenship and Immigration Services (USCIS) have now established a new procedure to allow employers who participate in E-Verify and are in good standing, to conduct remote inspection of an employee’s documents when completing Form I-9. USCIS has also released an updated version of…

In an opinion letter published this week, the U.S. Department of Labor’s Wage and Hour Division (“DOL”) clarified how employers should calculate an employee’s Family and Medical Leave Act (“FMLA”) leave entitlement when the leave is taken during a week that includes a holiday.

The FMLA regulations are clear that when an employee takes a…

The General Counsel for the National Labor Relations Board (“NLRB”) issued a landmark memorandum yesterday broadly opining that most non-compete agreements violate Section 7 of the National Labor Relations Act (“NLRA”) and directing the NLRB’s various regions to make challenging overbroad non-compete agreements an enforcement priority. After the NLRB’s sweeping decision this February in McLaren …

As the 2023 Virginia legislative session comes to a close, Governor Glenn Youngkin signed into law two new pieces of legislation that will expand the Commonwealth’s existing restriction on employee confidentiality agreements and restrict how employers may use employee social security numbers. Both new laws go into effect July 1, 2023.

Expanded prohibition on confidentiality…

On February 21, 2023, the National Labor Relations Board issued a landmark decision in McLaren Macomb that has the potential to seismically change how employers approach and manage employee separations that include severance packages. In response to this landmark decision and the impact it will have on many employers, Reed Smith’s Labor & Employment team…

On February 21, 2023, the National Labor Relations Board issued a landmark decision in McLaren Macomb that has the potential to seismically change how employers approach and manage employee separations that include severance packages. Overturning well-settled precedent, the Board held in a stunning decision that severance agreements containing non-disparagement and confidentiality provisions are unlawful under…

On December 7, 2022, President Biden signed into law the much-heralded “Speak Out Act.” As the name suggests, the Act is designed to “empower survivors [of sexual harassment and sexual assault] to come forward” and “hold perpetrators accountable for abuse” while improving the safety and productivity of the workplace. The Act notes that “nondisclosure and…

On Wednesday, March 23, 2022, official revocation of Virginia’s COVID-19 permanent workplace safety standard became effective upon publication in the Richmond Times-Dispatch. That action followed a vote by the Virginia Department of Labor and Industry’s (DOLI’s) Safety and Health Codes Board (Board) earlier this week.

The Board initiated steps in February to end the standard…