Professional Service Agreement

Week In Review

February 01, 2016

Though permitting access to administrative agencies, NLRB still finds employer’s arbitration policy unlawful
The National Labor Relations Board (NLRB) has invalidated an employer’s arbitration policy that foreclosed access to court and required employees to individually arbitrate claims. The employer’s policy permitted employees to file claims with administrative agencies, which might then pursue a judicial remedy on behalf of employees as a group. The NLRB held that access to administrative agencies was not the equivalent of access to a judicial forum, where employees themselves may seek to litigate their claims on a joint, class, or collective basis.

California employers must post annual work-related injury and illness summaries
The California Division of Occupational Safety and Health, better known as Cal/OSHA is reminding all employers in California of the yearly requirement to post their summaries of work-related injuries and illnesses from February 1 through April 30. The summary template, Form 300A, must be placed in a visible and easily accessible area at each worksite. Current and former employees, as well as employee representatives, must be allowed to review injury and illness records for those employees’ worksites. Employers are required to complete and post Form 300A even if no workplace injuries occurred.

DOL issues guidance on joint employer responsibilities under the FMLA
The Department of Labor (DOL) has issued guidance on the joint employment relationship and the corresponding responsibilities of primary and secondary employers under the Family and Medical Leave Act (FMLA). The DOL notes the importance of joint employment in determining employer coverage and employee eligibility under the FMLA, because joint employers’ responsibilities under the FMLA vary depending on whether they are the primary or secondary employer of the employee taking FMLA leave. The following factors are used to determine whether an employer is primary or secondary: (1) who has authority to hire and fire, and to place or assign work to the employee; (2) who decides how, when, and the amount that the employee is paid; and (3) who provides the employee’s leave or other employment benefits. In the case of a temporary placement or staffing agency, the agency is most commonly the primary employer.

In determining employer coverage and employee eligibility under the FMLA, employees who are jointly employed by two employers must be counted by both employers, regardless of whether the employee is maintained on one or both of the employers’ payrolls. The employee’s worksite is the primary employer’s office from which the employee is assigned or to which the employee reports, for purposes of determining whether a jointly employed employee works at a worksite where the employer employs at least 50 employees within 75 miles. But where the employee has physically worked for at least one year at a facility of a secondary employer, that location is the employee’s worksite.

Under the FMLA, the primary employer is responsible for: (1) giving required notices to its employees; (2) providing FMLA leave; (3) maintaining group health insurance benefits during the leave, and (4) restoring the employee to the same job or an equivalent job upon return from leave.

Whether or not the secondary employer is an FMLA-covered employer, it is prohibited from interfering with a jointly employed employee’s exercise of or attempt to exercise FMLA rights, or from firing or discriminating against an employee for opposing a practice unlawful under the FMLA. Under certain circumstances, the secondary employer is responsible for restoring the employee to the same or equivalent job upon return from FMLA leave; for example, when the secondary employer is a placement agency client and continues to use the services of the agency and the agency places the employee with that client employer. Secondary employers also must keep basic payroll and identifying employee data as to any jointly-employed employees. Secondary employers, of course, are also responsible for compliance with all FMLA provisions for their regular permanent workforce.

SESCO recommends that clients review all applicable policy and practices to ensure compliance. For assistance, contact us at 423-764-4127 or by email at