To escape the economic and administrative burdens of the employer-employee relationship, employers increasingly turn to “shared employee” arrangements with Professional Employee Organizations (PEOs), staffing agencies, independent contractors and other third party vendors to supply temporary workers. In doing so, employers typically assume that the third-party provider is the “employer” of the temporary worker, and therefore the obligations arising under wage and hour, family/medical leave, discrimination and other employment laws will be borne solely by the third-party provider. Such assumptions may prove costly, as courts and administrative agencies often look past efforts to alienate the employer-employee relationship to find both businesses are the employer with joint responsibility for compliance with employment laws.

In two prior posts we discussed the respective tests adopted by the NLRB and the Third Circuit for determining when two or more entities can be deemed “joint employers” equally liable for violations of employment laws. You can read about the Third Circuit’s Darden Test here and the NLRB’s “joint employer” standard here. Now the United States Department of Labor (DOL) has issued new guidance on when a joint employer relationship – with attendant joint responsibilities – exists under the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). These recent pronouncements are the latest efforts by governmental agencies and the courts to grapple with the shared worker trend in the modern workplace.

THE DOL’s INTERPRETIVE GUIDANCE ON JOINT EMPLOYER STATUS UNDER THE FLSA

With the advance of mobile technologies, employers are faced with the growing probability that employees are utilizing these devices to record conversations or other conditions in the workplace. Currently, approximately 38 states, including New York and New Jersey, have laws which permit a party to surreptitiously record a conversation if one party to the conversation has given permission to be recorded while other states including Pennsylvania, Connecticut, and Florida, require all parties involved in the recording to consent. These laws do not, however, touch upon an employer’s ability to regulate recordings in the workplace, and employers have generally assumed they were free to enact policies prohibiting or limiting recordings by employees. However, in a recent decision the National Labor Relations Board (the “NLRB” or “Board”) held that it is a violation of Section 7 of the National Labor Relations Act (the “Act”) for an employer to maintain a policy that restricts or prohibits employees from recording conversations with management without prior management approval. Section 7 gives employees the right to freely discuss terms and conditions of employment and to act in concert with one another for their mutual aid and protection.

The decision, Whole Foods Market, Inc. and United Food and Commercial Workers, Local 919, et al, arose out of a policy in Whole Foods Market’s General Information Guide prohibiting employees from recording “phone calls, images, and company meetings with any recording device…” unless prior approval was received from management, or unless all parties to the conversation consented to the recording.  Whole Foods’ no-recording policy was aimed at eliminating the “chilling effect” on the free expression of views that would otherwise arise if employees believed or suspected that they were being recorded on a device.

The NLRB took the opposite view, concluding that policies prohibiting employees from recording in the workplace without prior approval by management violate the Act because that policy has a “chilling effect” on the employee’s rights to engage in protected concerted activity under the NLRA.  According to the NLRB, protected conduct that might be negatively affected by prohibitions on recording include, for example, recording of images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment (such as a meeting to discuss potential discipline), documenting inconsistent application of employer rules, or documenting evidence for later use in judicial or administrative actions.  The NLRB determined that photography and recording in the workplace is an “essential element” in preserving and vindicating labor rights under the Act. Whole Foods was thus ordered to withdraw its policy and post notice of its violation.

Recent changes to OSHA’s posting requirements have narrowed the list of employers required to report the occurrence of significant injuries in the workplace.  Among the list of newly covered industries that were once previously exempt from posting requirements are tire stores and service centers; automobile dealers; bakeries; beer, wine, and liquor stores; specialty food stores; lessors of real estate and activities related to real estate;, certain professional, scientific, and technical services; ambulatory health care services; performing arts companies; certain event promotors; amusement and recreational industries; and specialty food services, among other industries.

OSHA’s posting requirements mandate that covered employers post summaries of serious workplace injuries and illnesses using OSHA’s Form 3300A between February 1, 2016 and April 30, 2016.  Form 3300A informs employees and others of the number of fatalities, injuries, poisoning, skin, and respiratory disorders and conditions, hearing loss instances, and other illnesses and conditions experienced by the employees at the workplace.  The form must be posted in a common, visible area where notices are generally posted each year.

Under OSHA’s reporting requirements, covered employers must report to OSHA all work-related fatalities within eight hours and all work-related inpatient hospitalizations, amputations, and all losses of an eye within 24 hours. Covered employers must post Form 3300A annually, even when no work-related injuries or illnesses occurred during that year.