Week in Review

March 09, 2015

Owner-operators of leased motor vehicles not employees under workers' comp law — VIRGINIA
The Virginia Workers' Compensation Act has been amended to exclude owner-operators of leased motor vehicles under certain conditions.
Specifically, for purposes of the workers' comp law, "employee" does not mean an owner-operator of a motor vehicle that is leased with or to a common or contract carrier in the trucking industry if (1) the owner-operator performs services for the carrier pursuant to a contract that provides that the owner-operator is an independent contractor and shall not be treated as an employee for purposes of federal unemployment tax and income tax laws; and (2) each of the following factors is present:
the owner-operator is responsible for the maintenance of the vehicle;
the owner-operator bears the principal burden of the vehicle's operating costs;
the owner-operator is the driver;
the owner-operator's compensation is based on factors related to the work performed and not on the basis of hours or time expended; and
the owner-operator determines the method and means of performing the service.

Congressional Democrats throw support behind DOL's revised home care worker rules
A group of 50 Democratic lawmakers have signed onto an amicus brief supporting the Department of Labor in its appellate challenge to a district court ruling invalidating the agency's revised domestic worker regulations. U.S. Senator Patty Murray (D-Wash.) and Representative Bobby Scott (D-Va.) led a bicameral group of Congressional Democrats in filing an amicus brief seeking to overturn a decision of the District of Columbia District Court, which prevented the DOL from implementing rule changes that would eliminate the FLSA's exemption from overtime and minimum wage for companionship services workers. The companionship services exemption, enacted in 1974, "was originally intended to apply to elder sitting, similar to casual babysitting, and had been broadly interpreted to include home care workers," the amicus drafters note. "However, the role of home care workers has changed dramatically since this exemption was first enacted, and today, these workers provide critical professional services to millions of older Americans and individuals with disabilities." They say their amicus brief gives "an authoritative account of legislative intent in the FLSA, which clearly allows DOL to determine rules and regulations that define the companionship services exemption." In 2013 the DOL enacted a final rule to extend overtime and minimum wage protections to these workers. In January, a court overturned the rulemaking. We will continue to monitor this situation and provide updates as appropriate.

Department of Justice and EEOC to collaborate to enforce Title VII in state, local government sectors
The EEOC and Department of Justice's Civil Rights Division have signed a new Memorandum of Understanding to further the goals of Title VII in prohibiting employment discrimination in the state and local government sector. Under Title VII, EEOC and DOJ share enforcement authority for public-sector employers: The EEOC receives, investigates, and mediates charges of discrimination against public employers; when the EEOC finds reasonable cause, and its conciliation efforts fail, the Commission refers the charge and its investigative file to DOJ, which has sole authority within the federal government to file a lawsuit against public employers under Title VII. The MOU was signed on March 2nd, in a signing ceremony at DOJ headquarters. It includes provisions for coordinating the investigation of discrimination charges "while respecting the distinct responsibilities and enforcement priorities of each agency," according to a press release issued on March 3. The MOU also includes provisions for information-sharing between the agencies, "as appropriate and to the extent allowable under law." "The MOU brings to life our vision to approach our shared Title VII enforcement responsibilities as a partnership," said Acting Assistant Attorney General Gupta. "It institutionalizes that partnership and provides a concrete framework for expanding our collaborations and increasing our effectiveness in protecting the employment rights of public sector workers."

Wage and Hour Division targets low-wage industries
Employers, especially those in low-wage industries, should be on notice that the Wage and Hour Division sees them as fertile ground for proactive investigations-the agency won't be waiting for a worker to complain. In a blog post on Thursday, February 26, WHD Administrator David Weil pointed out that during fiscal year 2014, WHD investigations found more than $240 million owed to more than 270,000 workers whose employers failed to pay them the wages they had earned in violation of the FLSA. The WHD collected an average of more than $659,000 in back wages for workers every day last year. "That's enough for more than 3,500 working families to buy a week's groceries," Weil said. On average, investigations found more than $890 for each worker who was owed back wages. Translating those numbers again into real-life consequences, Weil said that for a waiter or waitress "it means more than three and a half times what they would earn in a typical workweek. Imagine how challenging it would be if you weren't compensated for three-and-a-half weeks of work. More proactive investigations and Industry targeting. Weil underscored the fact that the WHD is proactively initiating investigations instead of waiting for a complaint to be filed. In 2014 more than 43 percent of its investigations were initiated proactively-up from 35 percent from five years ago. The WHD has also been targeting its resources to the right industries, particularly to those on the low end of the wage scale.

Managers say celebrating March Madness at work improves morale
Half (50 percent) of senior managers interviewed for an Office Team survey said activities tied to the college basketball playoffs boost employee morale, and more than one-third (36 percent) felt March Madness has a positive impact on workplace productivity. These results are up from 32 percent and 27 percent, respectively, in a similar survey conducted one year ago. The survey was conducted by an independent research firm and is based on telephone interviews with more than 300 senior managers at companies with 20 or more employees in the United States."Employers that encourage staff to enjoy events like March Madness recognize that these activities don't have to be viewed as negative workplace distractions," said Robert Hosking, executive director of Office Team. "Organizing friendly contests or watching big games together can give employees much-needed breaks and opportunities to build camaraderie."