Articles
Following the recent lead of the National Labor Relations Board (“NLRB”), on January 20th, 2016 the U.S. Department of Labor (“DOL”) issued a new guidance document which signals a more aggressive approach to holding joint employers responsible for wage and hour violations, including unpaid overtime pay. Under the new guidance document, DOL’s Wage & Hour Division will attempt to hold those employers who “share” employees or use temporary or leasing agencies to staff positions liable for wage and hour violations committed by another employer. This guidance document follows on the heels of the NLRB’s decision in Browning-Ferris Industries of California, 362 NLRB No.186 (2015), which expanded the definition of joint employment for purposes of union recognition and possible violations under the National Labor Relations Act. We expect that other federal agencies, such as the Occupational Health and Safety Administration, will shortly follow the DOL’s lead.
Interestingly, the DOL describes two separate types of joint employment: horizontal joint employment and vertical joint employment. Horizontal joint employment, described in a graphic illustration, is defined as two employers who share the use of the same employees and are connected by way of common ownership or common management. For example, an employee working for Company A 40 hours per week and working 10 hours for Company B with common ownership or management would be entitled to overtime pay for the combined hours.
Vertical joint employment is the type discussed by the NLRB in Browning-Ferris and includes employers who control the terms and conditions of the temporary or leased worker’s job. The more control the employer has over the temporary or leased worker, the more likely the employer will be considered a joint employer.
Thus, companies that share common ownership or common management with other companies need to look carefully at whether or not employees from one company are working with the other company to make sure they are not in violation of the Fair Labor Standards Act. Additionally, employers who use temporary or leased employees need to also determine if they exercise sufficient control over the terms and conditions of the temporary or leased employees work to meet the definition of a joint employer under the DOL guidance.
Stay tuned for further developments in this rapidly expanding area of joint employment. For more information, please contact Mansour Gavin’s Labor and Employment Practice Group.
LEGAL DISCLAIMER
The information contained on this web site and any linked resource is intended to provide general information and does not constitute legal advice. The content is not guaranteed to be correct, complete, or up-to-date. This web site is not intended to create an attorney-client relationship between you and Mansour Gavin LPA or any of its associates, and you should not act or rely on any information in this web site without seeking the advice of an attorney.
On April 1, 2016, U.S. Citizenship and Immigration Services (U.S. CIS) will begin accepting H-1B petitions for covered employment starting October 1, 2016. There is a numerical limit on the number of new H-1Bs issued each federal government fiscal year and, as has occurred for many years, it is anticipated that the numerical limit will be reached quickly. To avoid rejection of a petition because the numerical limit is reached, employers need to begin preparations now for filing on April 1st.
The H-1B program is available to foreign nationals who will be employed in a “specialty occupation.” “Specialty occupation” means an occupation which requires the theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation, and which requires the attainment of a bachelor’s degree or higher as a minimum requirement to perform the job duties. H-1B visas are valid in three-year increments for up to six years and are both employer and location specific. In addition, H-1B visas require that the foreign national be paid the prevailing wage for the job in the geographic area of intended employment or the actual wage paid to similar employees of the employer in the same occupation at the same work site, whichever is higher.
Petitioning employers must certify, under the penalty of perjury, that the Export Administration Regulations (EAR) and the International Traffic In Arms Regulations (ITAR) have been reviewed and a determination made regarding whether an export license is required before controlled technology or technical data may be released to the foreign national on whose behalf the H-1B petition is filed. The certification requires that the petitioning employer involve its trade professional early in the immigration process to ensure that the export control certification is accurately answered and if an export license is required, that it is received in time for the foreign national to begin employment in the position which is the subject of the H-1B petition.
Mansour Gavin has attorneys ready to assist you in filing your H-1B petition and navigating U.S. Export laws. If you have any questions or require assistance with your business immigration, please contact Ann E. Knuth in our Labor and Employment Group. If you have any questions or require assistance with international import and exporting activities, please contact Edward O. Patton in our Corporate and Business Services Group.
Legal Disclaimer
The information contained on this web site and any linked resource is intended to provide general information and does not constitute legal advice. The content is not guaranteed to be correct, complete, or up-to-date. This web site is not intended to create an attorney-client relationship between you and Mansour Gavin, LPA or any of its associates, and you should not act or rely on any information in this web site without seeking the advice of an attorney.