It’s Not Just the DOL That Thinks You May Have More Employees


Just last week, the DOL provided guidance about people treated as independent contractors, but who may really be your employees. That is just part of the trend. Another way you may have “extra” employees is through joint employment, most commonly through use of a staffing agency.

A recent case from South Carolina illustrates the point. The worker was hired by a staffing company and assigned to work for the company against which the worker brought the lawsuit. She complained about sexual remarks from one of the company supervisors, and the worker’s assignment with the company was terminated a few days later. The worker then sued both the staffing agency and the company. There was no dispute that the staffing agency had employed her, but the company escaped liability, or so it thought, by claiming it was not the worker’s employer. The appeals court said the company exercised sufficient control over the worker to also be considered her employer and therefore told the trial court it had to consider her claims on the merits. Continue reading this entry

Someone’s Knocking: If It’s the Union, Don’t Let Them in


The National Labor Relations Act protects employee solicitation of other employees and distribution of literature to form or join a union or to engage in other “concerted” activities. However, employers have the ability to regulate such solicitation and distribution in the workplace under certain circumstances. In general, employers can permissibly have policies that prohibit the following: Continue reading this entry

DHS Proposes Changes to E-Verify Program: I-9 Reverifications and FNC Formal Reviews


As employers continue to enroll in the E-Verify program at a high rate, the United States Department of Homeland Security (DHS) is considering various changes to this key program. Some of these changes place additional obligations on the employer. E-Verify is DHS’s internet-based system through which employers may electronically verify the employment eligibility of newly hired employees. Employers do so by opening an E-Verify case and entering the information contained on the Form I-9, Employment Eligibility Verification. Continue reading this entry

DOL Fires Across the Bow of Businesses Underway With Independent Contractor Manpower


Employee classification issues have been a recurrent topic of ours, and with all the class action litigation arising from independent contractor and other classifications, we have had no shortage of opportunities to remind companies of the potential risks inherent in other-than-employee classifications. But just in case anyone in the business community has not heeded these warnings, the Department of Labor has just upped the ante on misclassification challenges, sending a shot across the bow of any business using or considering the use of independent contractors to meet its manpower needs. Continue reading this entry

Unpaid Interns: The Second Circuit Pours Cold Water on a Hot Topic


Can businesses use unpaid interns? Over the past few years, this is a frequent question from corporate clients and a mainstay subject in the legal blogosphere (including right here). The heightened interest stemmed from a rash of well-publicized class action lawsuits brought (mostly in New York City) by unpaid interns who claimed that, during their internships with various businesses, they really functioned like employees and thus were entitled to minimum wage and overtime pay for the time served. Many of these lawsuits came on the heels of an intern “win” in 2013, where a federal district court judge ruled that, under federal and New York law, the interns were indeed employees of a film studio and authorized the case to proceed on a class basis under both federal and New York law. The studio appealed that ruling to the United States Court of Appeals for the Second Circuit (covering Connecticut, New York, and Vermont).  Continue reading this entry