The Occupational Safety and Health Act of 1970 (the “OSH Act”) is the primary federal law that governs occupational health and safety in the private sector and federal government. The OSH Act is administered by the Occupational Safety and Health Administration (“OSHA”) and covers most private sector employers and their employees. When a temporary worker is placed with an end client (referred to as the “host employer” by OSHA) the staffing agency and host employer are jointly responsible for maintaining a safe work environment. But, how are these joint responsibilities divvied up given the fact that the temporary worker will likely be rendering services outside the staffing agency’s premises? According to OSHA, the staffing agency and host employer must “work together” to ensure that the OSH Act’s requirements are fully met. Working together includes determining which of the joint employers may be better suited to ensure compliance with a particular requirement, and who will assume primary responsibility for it. Obviously, in the fast paced staffing industry this is not the easiest task in the world, particularly when the staffing / host employer relationship is new, … Continue reading
I’m amazed at how many times an ex-employee acknowledges that they have executed a restrictive covenant agreement (a non-compete or non-solicitation agreement), then utters that it’s meaningless due to unenforceability. This Alfred E. Neuman / “What, Me Worry” approach often leads to problems for both the sophomoric ex-employee, as well as the former employer. The enforceability of restrictive covenants is governed by applicable state law, which will customarily be the state in which the employee worked or the state whose law was contractually agreed to govern. Other than the few jurisdictions (such as California) in which specified restrictive covenants are unenforceable as a matter of public policy, as a general rule restrictive covenants are enforceable to the extent that they are reasonable necessary to protect a legitimate business interest. This determination is fact specific and, again, determined under the particular governing state law. All facts are different; all state laws vary – meaning that each case has to be evaluated on its own.
Under the Affordable Care Act (i.e. ObamaCare) penalties are imposed on “large employers” (i.e. those with 50 or more full time employees) if any “full time” employee receives a tax subsidy to assist in buying health insurance. For employers in the staffing industry, who bring on w-2 employees to staff client projects, determining what constitutes “full time” employment under ObamaCare could be a complicated task. As part of the ObamaCare implementation process, the Department of Labor recently released “frequently asked questions” which, in part, touch upon the “full time” employment question. (see http://www.dol.gov/ebsa/pdf/tr12-01.pdf) According to the DOL, “full time” employees are those who are employed at least 30 hours per week. In making such determination, for employees who are not “newly hired” employers can “look back” for up to 12 months to determine who is full time. For “newly hired” employees, an employer will be given six months to determine whether it “reasonably expects the employee to work full-time on an annual basis.” The FAQs further provide that if “a newly-hired employee is reasonably expected to work full-time on an … Continue reading
In 2000, I became the General Counsel for Starpoint Solutions, LLC a technology engineering company headquartered in New York City specializing in IT staff augmentation, application development and product integration. In my role as General Counsel for Starpoint Solutions, I was in charge of all legal aspects of their operations, including transactional matters, capital financing, contract negotiations and corporate governance. In addition to my role as General Counsel, I also managed Starpoint’s human resources department where I supervised all employee related matters. This experience has proven invaluable to my practice. Why not put my 20 years of varied experience in Business law to work for your business?
Last month I blogged that the National Labor Relations Board (“NLRB”) had issued a final rule requiring companies to post in the workplace notices to employees about their rights to join a union. Under the rule, such notice was to be posted by November 14, 2011. Given the coverage scope and content of the posting requirement, several legal actions seeking to enjoin enforcement of the rule were promptly instituted. Such suits (brought by the National Association of Manufacturers, U.S. Chamber of Commerce, the National Right to Work Foundation and the National Federation of Independent Business) challenge, in part, the NLRB’s statutory authority to implement such far reaching rules. In connection with the suits, National Federation of Independent Business President and CEO, Dan Danner, declared that “[t]he NLRB has strayed from its role as an impartial arbiter to instead become just an extension of labor unions,” and that “[t]his new atmosphere has created a chilling effect on businesses of all sizes.” Executive vice president of the National Chamber Litigation Center, Robin Conrad, flatly declares that the notice requirement is contrary to … Continue reading
Earlier this month, representatives of the Staffing Industry urged Congress to repeal the Patient Protection and Affordable Health Care Act (“ObamaCare”) that was signed into law in March of last year. Under ObamaCare, employers with 50 or more full-time workers are required to offer a minimum mandated coverage or pay a penalty of $2,000 per employee per year. “Full time” workers are those who provide at least 30 hours of service per week, with respect to any month. Many staffing firms have two separate groups of “full time” employees, internal permanent workers and “project based” employees who perform the consulting / freelance services to end clients. Often, staffing firms offer two separate health care plans to these distinct “full time” employee groups. One plan being a “traditional” plan offered / taken by internal permanent workers and a second plan being a “basic” plan offered / taken by “project based” employees. These “basic” plans will almost certainly not qualify as “Obama blessed” plans meeting ObamaCare’s mandates. What does this mean to staffing companies? If ObamaCare is not repealed, staffing companies will … Continue reading
Top level domains (“TLD”), such as .com, .net and .org are about to have another bedfellow – the .xxx domain name extension. These .xxx domains are intended to be utilized solely for hosting adult oriented websites. But, this new TLD has a lot of entities worried about having their company name, or brands, being linked to .xxx domains secured by unrelated parties. Recognizing this concern, the ICM Registry (the entity administering the TLD launch) has established a “sunrise” period that permits trademark owners and other business entities not in the adult entertainment industry, a period to claim certain .xxx names before they are open to the public. Accordingly, owners of federal trademarks or service marks (not in the adult entertainment industry) may file an application (between September 7th and October 28th) to block an .xxx domain registration utilizing their mark. If the application is approved, third parties trying to hijack the mark for .xxx purposes will be blocked. This application period is referred to by ICM Registry as the “Sunrise B” period. Unregistered trademark owners can also take steps to … Continue reading
Nearly all employers are covered under the provisions of the National Labor Relations Act (“NLRA”). Under the NLRA, most private-sector employees are extended the right to organize and bargain with their employer collectively. The law is administered and enforced principally by the National Labor Relations Board (“NLRB”). On August 30, 2011, a rule was published in the Federal Register requiring employers covered under the NLRA to post a notice in the workplace explaining employees’ rights under the NLRA. In general, the notice informs employees of their unionizing rights, provides examples of unlawful union and employer conduct, and instructs employees to contact the NLRB with questions and complaints. The NLRB rule requires that the notice be posted by November 14, 2011. Copies of the notice will be available on the NLRB’s website by October 1st. In addition to the physical posting, the rule requires every covered employer to post the notice on an internet or intranet site if personnel rules and policies are customarily posted there. Translated versions must be posted where at least 20% of the workforce is not proficient … Continue reading
In May of this year I wrote a blog about N.J.S.A. 34:8B-1 et seq. – a new New Jersey law prohibiting employers from discriminating against the unemployed in print and internet job advertisements. Now, the U.S House of Representatives has proposed a similar law – the “Fair Employment Opportunity Act of 2011” (HR 2501(1) – the “Act”) which protects the unemployed from “discrimination” shown by potential employers. Under the Act, employers with 15 or more employees (including staffing firms) are prohibited from “discriminating” against job applicants due to their employment status. Discriminatory acts include refusing to consider an applicant due to his/her unemployed status, impeding access to information available to the unemployed regarding jobs, and placing ads that state that the unemployed “need not apply.” Unlike the related NJ law, the Act (i) provides for a private right of action, (ii) delineates a very broad range of remedies (including the payment of attorney fees) and (iii) includes a whistleblower protection provision. While the New Jersey act was bad enough in that it is just one more seemingly meaningless governmental … Continue reading
In March 2011, the U.S. Department of Labor (“DOL”) requested a $13.3 million increase in its budget, the bulk of which is slated towards increased enforcement and regulation of wage and hour laws (namely FLSA). The DOL has sought 107 additional full-time personnel to advance its crusade against wage and hour violations and, according to the DOL, is planning to conduct an additional 3,250 investigations in 2012. As part of its increased enforcement plan, the DOL recently launched a timesheet application for smartphones to empower employees to independently track the hours they work and determine the wages they are owed. Via the application, employees can track regular work hours, break time and any overtime hours for one or more employers. It also permits users to add comments related to their work hours; view a summary of work hours in a daily, weekly and monthly format; and email the summary of work hours and gross pay as an attachment. According to the DOL, “[t]his information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to … Continue reading