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Happy Labor Day!

As an employment attorney, I thought it would be nice to share some interesting information regarding Labor Day.

Department of Labor Facts re Labor Day

  • Labor Day, the first Monday in September, is a creation of the labor movement and is dedicated to the social and economic achievements of American workers.
  • The first governmental recognition came through municipal ordinances passed during 1885 and 1886.
  • February 21, 1887 Oregon passed Labor Day bill. New York actually introduced the legislation first, but Oregon passed the law first.
  • On June 28, 1895, Congress passed an act making the first Monday in September of each year a legal holiday in the District of Columbia and the territories.

Who First Proposed Labor Day?

It was a McGuire, but was it Peter or Matthew? Peter McGuire was the general secretary of the Brotherhood of Carpenters and Joiners. He also cofounded the American Federation of Labor. Some records he first suggested a day to honor those “who from rude nature have delved and carved all the grandeur we behold.”

Others say that Matthew Maguire, secretary of the Central Labor Union in New York, proposed the holiday in 1882.

At the height of the U.S. Industrial Revolution Americans worked long days, oftentimes 7-days a week just to eke out a basic living. Children worked alongside adults in deplorable conditions, and immigrants often faced extremely unsafe working conditions. Workers began joining together in collectives and unions to fight the inhumane working conditions.  According to History.com, “on September 5, 1882, 10,000 workers took unpaid time off to march from City Hall to Union Square in New York City, holding the first Labor Day parade in U.S. history.”

Labor Day: A Fight for Change

For those that started the movement, Labor Day was more than just a day off from work. It was a statement that all workers deserve to be treated fairly. Many of us take modern working conditions for granted.

Ben Railton, an Associate Professor of English and American Studies at Fitchburg State University and a member of the Scholars Strategy Network says:

Like the American labor movement itself, these histories are messy, conflicted, include both triumphs and tragedies, aren’t easily boiled down into a straightforward narrative. But one clear takeaway is this: As with every victory achieved by the labor movement (including eight-hour workdays, the weekend, health protections, child labor laws, and numerous other successes), Labor Day would not exist without the movement’s more radical and activist elements and efforts. Remembering the holiday’s origins can thus help us not only celebrate all that the labor movement has achieved, but also recognize the continued need for radical activism.

Celebrate the last days of Summer. Enjoy time with your friends and family, but don’t forget the struggles of our forefathers that made this day possible.

Happy Labor Day!

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

HR Director Can Sue When Fired for Retaliation

 

The FLSA provides that it is unlawful for an employer to: “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee[.]”  29 U.S.C. § 215(a)(3).  Employees fired for retaliation in violation of the FLSA can sue their employer.

But what if the employee’s job is to report violations of the company to the employer so the employer can decide whether to fix the problem?  Has the employee “filed a complaint,” or just done the employee’s job?  In Rosenfield v. Globaltranz Enterprises, the Ninth Circuit held an HR Director can state a claim that she was fired for retaliation when she reported violations of the FLSA to the employer.

Alla Rosenfield was the Director of Human Resources for Globaltranz. Throughout her employment, Plaintiff reported to her superiors that the company was not compliant with the FLSA, and she repeatedly sought changes to attain statutory compliance.  After GlobalTranz fired Plaintiff, she filed a lawsuit alleging that she was fired for retaliation in violation of the FLSA.  Plaintiff claimed GlobalTranz fired her for complaining to other managers and to executives that GlobalTranz was failing to comply with the FLSA.  The court had to decide whether an HR Director can state a claim for retaliation under the FLSA when it was her job to bring FLSA violations to the employer’s attention.

HR Directors and Managers Can Sue when Fired for Retaliation

Even though the district court recognized that Plaintiff had “advocated consistently and vigorously on behalf of . . . GlobalTranz’s employees whose FLSA rights Plaintiff thought were being violated,” the district court held that she nevertheless was not entitled to the protections of § 215(a)(3) because she had not “filed any complaint” for purposes of the FLSA.

Unlike some laws, congress did not create a detailed federal supervision system or process requiring government payroll inspections. Rather, it chose to rely on information and complaints received from employees seeking to vindicate rights claimed to have been denied. The FLSA is not supposed to be a “gotcha” statute and “seeks to establish an enforcement system that is fair to employers.” “To do so, the employer must have fair notice that an employee is making a complaint that could subject the employer to a later claim of retaliation.” Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 131 S. Ct. 1325, 1334 (2011).

 

In Kasten, the Supreme Court established a “fair notice” test for deciding whether an employee has “filed any complaint” under the anti-retaliation provision of the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 215(a)(3): “[A] complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.”

 

If an entry-level employee reported that someone is underpaid in violation of the FLSA and requested that the employee be compensated in compliance with the Act, a reasonable employer almost certainly would understand that report as a “complaint.” But if the identical report were made by a manager tasked with ensuring the company’s compliance with the FLSA, a reasonable employer may not understand that report as a “complaint.” Rather, the employer think the manager was just carrying out his or her duties. Therefore, when determining whether an employee has “filed any complaint,” the employee’s role as a manager often is an important contextual element.

According the Ninth Circuit:

The employee’s job title and responsibilities—in particular, whether he or she is a manager—form an important part of that “context.” Generally speaking, managers are in a different position vis-a-vis the employer than are other employees because (as relevant here) their employer expects them to voice work-related concerns and to suggest changes in policy to their superiors. That may be particularly true with respect to upper-level managers who are responsible for ensuring compliance with the FLSA.

The Ninth Circuit held that a complaining employee’s position as a manager is an important part of the “context” that the fact-finder must consider, and a jury reasonably could find that Plaintiff, a managerial employee, filed such a complaint. Because Kasten requires consideration of the content and context of an alleged FLSA complaint, the question of fair notice must be resolved on a case-by-case basis. An employee’s managerial position is only one consideration.

The court declined to formulate or adopt a special bright-line rule to apply when considering whether a manager has “filed any complaint” within the meaning of the FLSA.

Even if an employee is responsible for reporting violations of the law to the employer, such reports can constitute “filing a complaint,” and serve as the basis for a retaliation complaint.  Employers must carefully consider a number of factors before terminating an employee (even and at-will employee).  Employers may need to take particular care when terminating HR employees or other managers whose job requires them to report violations of the law.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

NLRB Expands Joint-Employer Status

Employers using third-party employers or placement agencies have a new case to worry about.  In a recent NLRB decision, the board expanded the test for joint-employer status, making it easier for employees and unions to allege multiple entities are actually joint employers under the National Labor Relations Act.

In Browning-Ferris Industries of California, Inc., (Case 32–RC–109684) the NLRB considered whether the Board should adhere to its current standard for assessing joint-employer status under the NLRA or whether that standard should be “revised to better effectuate the purposes of the Act, in the current economic landscape.” The issue in the case was whether BFI and Leadpoint were joint employers nunder the NLRA. The Regional Director issued a Decision and Direction of Election finding that Leadpoint was the sole employer. The Union filed a request for review and asked the Board to reconsider its standard for evaluating joint employer relationships.

The board held that while the current standard is ostensibly based on a Third Circuit Court of Appeals decision, (NLRB v. Browning-Ferris Industries of Pennsylvania, Inc., 691 F.2d 1117), recent board decisions have “since imposed additional requirements for finding joint-employer status, which have no clear basis in the Third Circuit’s decision, in the common law, or in the text or policies of the Act.”  According to the board:

these additional requirements—which serve to significantly and unjustifiably narrow the circumstances where a joint-employment relationship can be found—leave the Board’s joint-employment jurisprudence
increasingly out of step with changing economic circumstances, particularly the recent dramatic growth in contingent employment relationships.

Relationship Between BFI and Leadpoint

BFI owns and operates a recycling facility.  It employs about 60 people outside of the facility who move materials and prepare them to be sorted inside the facility.  Leadpoint provides BFI with employees who work inside the facility sorting the recycled material and cleaning the facility and the equipment.  BFI’s contract with Leadpoint specifies that Leadpoint is the sole employer.  The contract is terminable at-will upon 30 days notice.

The board examined several factors in its analysis, that it believed relevant to deciding whether BFI and Leadpoint were joint employers.

Management Structure

Each company employs their own supervisors and managers, with BFI managers supervising BFI employees, and Leadpoint managers supervising Leadpoint employees.  The companies have separate human resources departments, although only Leadpoint had an HR representative on site.

Hiring

Leadpoint was responsible for recruiting, interviewing, testing, selecting, and hiring personnel to perform work for BFI, but BFI retained the right to request that personnel supplied by Leadpoint “meet or exceed [BFI’s] own standard selection procedures and tests.”

Discipline and Termination

Although the Agreement provides that Leadpoint has sole responsibility to counsel, discipline, review, evaluate, and terminate personnel who are assigned to BFI, it also grants BFI the authority to “reject any Personnel, and . . . discontinue the use of any personnel for any or no reason.

Wages and Benefits

Although the Agreement provides that Leadpoint “solely determines the pay rates paid to its Personnel,” the Agreement includes a rate schedule that requires BFI to compensate Leadpoint for each worker’s wage plus a specified percentage mark-up.  Additionally, Leadpoint was not allowed, without BFI’s approval, to “pay a pay rate in excess of the pay rate for full-time employees of [BFI] who perform similar tasks.”

Scheduling and Hours

Although Leadpoint selects which employees will work each shift, Leadpoint cannot change the shifts set by BFI.  Leadpoint employees must obtain an authorized BFI representative’s signature on the employee time records.

Work Processes

When BFI’s managers identify job performance problems of Leadpoint employees, they communicate their concerns to a Leadpoint supervisor, who is expected to address those issues with the employees.

Training and Safety

Leadpoint provides orientation and job training to its employees, but BFI occasionally provides substantive training and counseling.

Other Terms

The Agreement also says Leadpoint employees are not to be assigned to work at a BFI facility for more than 6 months, but BFI never invoked that particular clause.

Following prior Board precedent, the Director determined BFI is not a joint-employer of the Leadpoint employees because it does not “share or codetermine [with Leadpoint] those matters governing the essential terms and conditions of employment” of the Leadpoint employees.

The Board analyzed the changes to the joint-employer analysis over the last 60+ years.  The Board believed that prior cases impermissibly narrowed the test for joint-employer status, and made it clear that “[i]n determining whether an employment relationship exists for purposes of the Act, the Board must follow the common-law agency test.”  As emphasized by the Supreme Court, a critical issue is “whether one statutory employer ‘possessed sufficient control over the work of the employees to qualify as a joint employer with’ another statutory employer.”

New Test for Joint-Employer Status

The board announced a new standard, that it believes is really a restatement of the original correct standard, for determining joint-employer status:

The Board may find that two or more entities are joint employers of a single work force if they are both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating the allocation and exercise of control in the workplace, we will consider the various ways in which joint employers may “share” control over terms and conditions of employment or “codetermine” them, as the Board and the courts have done in the past.

The new test eliminates the the previously-applied requirement of “actual and direct control over workers” to establish a joint-employment relationship. Browning-Ferris may appeal the decision to federal courts, so we don’t know if this decision will be the final word in this case.

Although this case arose from a union’s attempt to represent previously unrepresented employees, the decision is important for all employers.  State and federal agencies are cracking down on employee misclassifications.  California enacted legislation allowing workers to sue labor contractors and the end-clients without having to prove a joint-employer relationship.  Several class actions are pending throughout the nation alleging joint-employer relationships, even when the companies maintain entirely separate companies.  Employers have to be more cautious than ever when using third-party employers and placement agencies.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.