Seminar October 28, 2015

Labor & Employment Executive Breakfast Seminar

Event Detail
R. Steve Ensor, Clare H. Draper, IV
October 28, 2015
Atlanta, GA

Alston & Bird hosted this seminar in the Atlanta office. Attorneys Steve Ensor and Clare Draper presented the following topics. 

Symposium on the Employment Relationship
Recent developments at the U.S. Department of Labor are forcing every employer that uses independent contractors or workers provided by staffing companies to reevaluate its staffing models. As the DOL expands the definition of “joint employer” and narrows the scope of “independent contractor,” many employers may now have employment obligations for workers they have long viewed as non-employees. In light of the flurry of activity surrounding joint employment, independent contractors and franchises, this seminar focused on issues relating to who is an employer and who is an employee under various employment laws.

Who is a (joint) employer?
The National Labor Relations Board (NLRB) has expanded the definition of joint employer in a way that may create new obligations for any company that uses workers supplied by staffing companies. Last month the NLRB issued a game-changing decision – Browning Ferris Industries of California et al v. Sanitary Truck Drivers and Helpers, Local 350 – when it determined that Browning Ferris, which used a staffing company to provide workers, was a joint employer to the staffing company’s employees under the National Labor Relations Act and must participate in negotiating a collective bargaining agreement with the staffing company and the union representing its workers. In reaching this result, the NLRB changed the standards it applies to determine whether a joint employment relationship exists and dramatically expanded the circumstances in which a company may be considered a joint employer with an outside organization. We discussed what impact this decision could have on employers under the NLRA and other laws and steps employers can take to minimize the risk of joint employment in its relationships with third parties that provide workers.

Who is an employee?
The issue of what workers can be classified as independent contractors is a perennial problem for employers – and now the Department of Labor has made the problem and the risks much larger. In light of the Browning-Ferris decision and recent Guidance issued by the DOL significantly limiting the types of workers it will deem to be independent contractors, we will discuss the new standards for classification of employees and independent contractors under the NLRA and FLSA and the related risks. Our discussion included recent developments and best practices for employers when making classification decisions.

What about franchises?
Although the Browning-Ferris decision expressly declined to extend its joint employer analysis to the relationship between franchisors and franchisees, it is expected that the NLRB will have an opportunity to decide this issue soon in some other pending cases. We discussed those cases, as well as other Board and administrative activity, that shed some light into the recent trends in employment law impacting the franchise relationship.

This seminar was approved for one CLE hour by the State Bar of Georgia.

Wednesday, October 28, 2015 
8:15 a.m. - 10:00 a.m.
Alston & Bird LLP / 1201 West Peachtree Street / Atlanta, Georgia

Media Contacts
Nicholas Clarke
Senior Communications Manager
Phone: 212.210.1222
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