5th Edition of Employment Law Toolkit for Illinois Employers is Now Available

Employment Law ToolkitArnstein & Lehr LLP Chicago Partner, E. Jason Tremblay, has published the 5th Edition of his book entitled “Employment Law Toolkit for Illinois Employers – How to Protect Your Business From Liability and Comply with State and Federal Employment Laws.” 

This 182-page book provides an excellent summary of federal and state employment and labor laws facing employers. It also serves as an excellent resource for employers, business professionals and entrepreneurs to protect themselves from employment and labor-related liability. Among other topics in this new edition of the Toolkit are trending topics such as the updated Fair Labor Standard Act regulations, restrictive covenant law developments, worker classification issues, as well as a wide range of other legal topics impacting employers in today’s litigious environment. 

Should you want to order a courtesy copy of the Toolkit, please contact E. Jason Tremblay at ejtremblay@arnstein.com or at (312) 876-6676.

New Illinois Law Provides For Unpaid Child Bereavement Leave

Kellie Chen Kellie Y. Chen

On July 29, 2016, Governor Rauner signed the Child Bereavement Leave Act (the “Act”), making Illinois one of only two states (Oregon being the first in 2014) to require covered employers to provide unpaid leave in the event of the death of an employee’s child.  The Act, effective immediately, requires employers with 50 or more employees to provide employees with up to two weeks (10 working days) of unpaid leave, also known as child bereavement leave.

Employers and employees under the Act are defined in the same way as they are under the Family and Medical Leave Act (“FMLA”).  Therefore, employees that are eligible to take leave and employers that are required to provide leave under the FMLA also fall under the Act’s provisions. 

However, the Act does not create a right for employees to take unpaid leave that exceeds the unpaid leave time available under the FMLA.  For example, an employee who has already used all of his or her 12 weeks of FMLA leave cannot take an additional 10 working days because of the death of his or her child (unless the employer chooses to provide additional leave). In the alternative, employees may elect to substitute paid leave for unpaid leave under the Act, but employers may not require employees to do so.

Child Bereavement Leave Under the Act

Under the Act, a “child” is defined broadly as “an employee’s son or daughter who is a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.” 

Employees may use child bereavement leave for the following reasons:

(1) to attend the funeral or an alternative to the funeral, of a child;

(2) to make arrangements necessitated by the death of a child; or

(3) to grieve the death of a child.

An employee must take child bereavement leave within 60 days after he or she receives notice of the death of a child, and if an employee loses more than one child in a 12-month period, then he or she is entitled to take up to six weeks of unpaid leave in that 12-month period.

Employees must give their employers at least 48 hours’ advance notice of their intent to take child bereavement leave, unless it is unreasonable or impracticable.  An employer may also require that the employee provide reasonable documentation such as a death certificate, published obituary, or written verification of death, burial, or memorial services.

The Act’s Impact on Employers

All covered employers – again those with 50 or more employees – should update their employee handbooks and/or leave policies to address the Act’s requirements and to provide notice to employees of their rights under the Act.  Additionally, employers should be aware that they are prohibited from retaliating or taking any other adverse actions against employees who exercise their rights, or attempt to do so, under the Act.  Aggrieved employees may seek recourse either before the Illinois Department of Labor or in state court for violations of the Act.   

Should you have any questions regarding the Act or should you need assistance updating your policies in order to comply with the Act, please contact Kellie Y. Chen at 312-876-7837, E. Jason Tremblay at 312-876-6676 or your designated Arnstein & Lehr LLP attorney.

USDOL Issues New FLSA and EPPA Posters

E. Jason Tremblay

E. Jason Tremblay

The U.S. Department of Labor (DOL) recently issued slightly revised workplace posters under the Fair Labor Standards Act (FLSA) and the Employee Polygraph Protection Act (EPPA). The new EPPA poster includes updated information regarding civil penalties to employers for violating the Act. The new FLSA poster includes new information regarding worker classification issues, lactation breaks and civil penalties.

All employers governed by these two Acts must immediately post copies of each poster in a conspicuous place in each of their work locations. Luckily, both posters are available online from the DOL website. Therefore, you can simply print off the new copies of the posters and replace your existing two posters. Click to go to the FLSA and EPPA Web pages for a copy of the new posters.

Should you have any questions, please contact E. Jason Tremblay at 312-876-6676 or your Arnstein & Lehr LLP employment and labor attorney.

Paid Sick Leave is Coming to Chicago

E. Jason Tremblay

E. Jason Tremblay

On June 22, 2016, the Chicago City Council passed the Chicago Minimum Wage and Paid Sick Leave Ordinance (the Ordinance). Provided the Ordinance is signed into law by Mayor Rahm Emanuel (which is expected), the Ordinance will take effect on July 1, 2017. As discussed more fully below, the Ordinance will allow Chicago employees to accrue up to 40 hours of paid sick leave every 12 months.

Who is covered by the Ordinance?

Covered Employers

While there are some narrow exceptions (such as employees covered by a collective bargaining agreement), the Ordinance applies to virtually all Chicago employers, no matter their size. It applies to employers who have at least one (1) employee in Chicago and who either (A) maintain a business facility within the City, or (B) are subject to at least one of the City’s numerous licensing requirements. Put another way, a small employer who is not even physically located within Chicago may be covered by the Ordinance provided they have at least one employee working within the City.

Covered Employees

Covered employees include any full-time or part-time employee who works in Chicago at least two hours in any two-week period. To be covered, the employee must also work at least 80 hours for a covered employer in any 120-day period. Notably, time spent traveling in the City that is compensable, such as sales calls and making deliveries, counts towards the hours requirement.

How is paid sick leave earned and handled?

Commencing on July 1, 2017, covered employees will accrue one hour of paid sick leave for every 40 hours worked. Exempt employees are assumed to work 40 hours per week, unless their normal work week is less than 40 hours, in which case the accrual of paid sick leave will be based upon the number of hours the exempt employee regularly works in a work week.

Employers are allowed to limit the amount of paid sick leave an employee may accrue to 40 hours in a 12-month period, although employers are also allowed to offer more than 40 hours of sick leave too. At the end of the applicable 12-month accrual period, the employee is entitled to carry over one-half his or her unused accrued paid sick leave to the following 12-month period, up to a maximum of 20 hours. Moreover, if the employer is subject to the Federal Family and Medical Leave Act (FMLA), an employee may carry over up to an additional 40 hours of his or her accrued sick leave to the following 12-month period (in addition to the 20 hours) but the additional 40 hours must exclusively be used for FMLA-eligible purposes.

In lieu of allowing employees to accrue sick leave as they work (i.e., the accrual method), employers may also satisfy the Ordinance’s requirements by awarding the entire 40 hours of paid sick leave immediately upon the date of eligibility and, thereafter, at the beginning of each subsequent 12-month period. While this may be administratively easier for employers to implement, it “front loads” sick leave at the beginning of the 12-month period, and could provide more paid sick time than required if the employee leaves prior to the expiration of the 12-month period.

When can employees use sick leave?

While employees begin to accrue paid sick leave immediately upon the commencement of employment, the Ordinance does allow employers to prohibit employees from beginning to use such sick leave until 180 days after he or she commences employment. Employers also have the right to obligate employees to use sick time in increments of four hours or less per day.

The Ordinance entitles employees to use paid sick leave for the following reasons: (1) the employee, or the employee’s family member, is ill, injured, or is receiving medical care, treatment, diagnosis or preventative medical care; (2) the employee, or the employee’s family member, is the victim of domestic violence or a sex offense; or (3) a public official closes the employee’s place of business because of a public health emergency, or the employee needs to care for a child after a public official has closed the child’s school or place of care because of a public health emergency. The Ordinance broadly defines “family member” to include step- and foster relationships, legal guardians and domestic partnerships.

An employer cannot require an employee to find a replacement worker to cover the hours during which he or she is using paid sick leave. Such provisions, which tend to be prevalent, especially with smaller employers, are unenforceable under the Ordinance.

How do employees request sick leave?

There are also various leave request and certification aspects of the Ordinance. For example, when the employee’s need for paid sick leave is reasonably foreseeable, an employer may require the employee to provide up to seven (7) days advance notice of such paid sick leave. If the paid sick leave is not reasonably foreseeable, an employer may require the employee provide notice as soon as practicable. Not surprisingly, an employee is not required to provide prior paid sick leave notice if he or she cannot provide notice because he or she is unconscious or otherwise incapacitated.

An employer may also require a medical certification to justify the sick leave request, but only when the employee is absent for more than three (3) consecutive work days. Other notice and certification requirements apply in circumstances where the employee or the employee’s family member is the victim of domestic violence or a sex offense.

Do employers have to pay out unused, accrued paid sick leave upon termination?

Unless otherwise provided for in a collective bargaining agreement, unused, paid sick leave is not required to be paid out by the employer upon the termination or separation of employment.

What are the Ordinance’s notice requirements?

The Ordinance requires employers to post a written notice advising employees of the right to paid sick leave. As with all other labor law notices, the notice must be in a conspicuous place at each of the employer’s facilities or locations located in Chicago. Moreover, all covered employers must also provide employees with notice of their rights to paid sick leave under the Ordinance with their first paycheck. Such notice will be prepared in the near future by the Commissioner for Chicago’s Department of Business Affairs and Consumer Protection.

What remedies exist for employees under the Ordinance?

As with most employment-related statutes and ordinances, employers are prohibited from discriminating or retaliating against employees for exercising, or attempting in good faith to exercise, their rights protected under the Ordinance. An employer who violates the Ordinance, will be subject to a civil action by the affected employee. In such lawsuit, the employee will be entitled to recover damages equal to triple the full amount of unpaid sick leave lost or denied because of the employer’s violation, the interest on that amount, costs, and attorneys’ fees.

What should employers do to prepare?

This Ordinance is significant for all Chicago employers, small and large. While there is some time to prepare for the effective date of this Ordinance, Chicago employers should consider and implement some of the following actions:

  • Evaluate whether an existing paid time off (PTO) policy will satisfy the requirements of the Ordinance.
  • Determine whether to use an accrual or lump-sum method of providing paid sick leave.
  • Review and revise, if necessary, existing paid sick leave time and/or paid time off policies and procedures to meet the Ordinance’s requirements.
  • Audit time-keeping, payroll and benefit systems to insure proper tracking of paid sick leave usage, accrual, caps, and carry over limits.
  • Insure that the proper written notices will be provided, including the applicable poster at each worksite located within Chicago, as well as the separate employee notice provided to each employee in their first paycheck.

As always, should you have any questions, please contact E. Jason Tremblay at 312-876-6676 or your designated Arnstein & Lehr LLP attorney.

Defend Trade Secrets Act signed into law

Arnstein & Lehr Attorney Joseph Kuo

Joseph Kuo

On May 11, 2016, the Defend Trade Secrets Act (DTSA) of 2016 was signed into law. The DTSA was unanimously passed in the Senate and ratified in the House by a vote of 410-2. The DTSA became immediately effective for all trade secret misappropriations occurring after the date of enactment.

The DTSA is an addition to the Economic Espionage Act (18 U.S.C. §1831 et seq.), the 1996 federal criminal trade secrets statute. Prior to enactment of the DTSA, only the government could prosecute trade secret misappropriation at the federal level. Private civil actions, on the other hand, could only be brought in state court, likely under a version of the Uniform Trade Secrets Acts, which has been adopted by 48 states.

The DTSA now enables private parties to file civil actions for trade secret misappropriation in federal district court. In large part, the DTSA mirrors the Uniform Trade Secrets Act.

What is a Trade Secret?

A “trade secret” is defined in the Act as “all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if—(A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the another person who can obtain economic value from the disclosure or use of the information.”

In other words, there are two key components to whether something is a “trade secret”: (1) it is something that a company has taken steps to keep secret; and (2) the company derives value from the secret. Classic examples are the formulas for Coca-Cola and KFC Original Recipe.

What does the DTSA provide?

An owner of a trade secret that has been misappropriated may bring a civil action if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce. Therefore, in order to proceed under the DTSA, the trade secret must be “related to a product or service used in, or intended for use in, interstate or foreign commerce.” In some circumstances, it may be that the product or service does not meet this requirement, and can only be brought in state court.

There is also a statute of limitations of three years from the discovery of the misappropriation or from the time it should have been discovered by the exercise of reasonable diligence.

Important provisions of the DTSA:

Ex Parte Seizures:

  • An ex parte (without notice) civil seizure order may be sought in “extraordinary situations” with respect to “property necessary to prevent the propagation or dissemination of the trade secret that is the subject of the action.” Potential examples of such property may include computers, network hardware and digital storage media that were or could still be used by a defendant.
  • The requirements for an ex parte seizure order are similar to those for a temporary restraining order, i.e., such a seizure order may only be used where other equitable relief would be inadequate because it would be avoided or evaded by a defendant. A seizure order can only be issued upon proof of “immediate and irreparable injury” with equities balanced in favor of the plaintiff. The plaintiff must also establish a likelihood of success on the merits of the misappropriation claim.
  • To balance the potential harm to the defendant, the statute includes a number of procedural safeguards, including: (i) the seizure order must “provide for the narrowest seizure of property necessary” and must be executed by law enforcement officials (although technical experts may accompany); (ii) a bond sufficient to cover damages should the seizure turn out to be wrongful or excessive must be posted; (iii) the court must provide specific guidance to the officials executing the seizure that “clearly delineates” the scope of their authority and details how the seizure must be conducted; and (4) the hearing date related to any seizure must also take place within seven days.
  • If faced with an ex parte seizure order, the business team and/or technical personnel should consult counsel immediately and take great care not to interfere with the execution of a seizure order. Developing a procedure if faced with an ex parte seizure order when law enforcement officials are at the company is too late. One should proactively develop internal and external response plans for properly handling the receipt of a seizure order.

Injunctive Relief against a former employee:

  • An injunction may be granted to prevent any actual or threatened misappropriation. A concern with this is that it may be used by employers to prevent a departing employee from taking a job with a competitor.
  • Therefore, key limitations to the injunctive relief provision of the DTSA include that the injunction (1) cannot prevent a person from entering into an employment relationship, and that conditions placed on such employment shall be based on evidence of threatened misappropriation and not merely on the information the person knows; and (2) cannot otherwise conflict with an applicable State law prohibiting restraints on the practice of a lawful profession, trade, or business.
  • It is not stated what the “applicable State law” is. For example, is it the law of the state in which the action is brought, or is it the law of the state where the former employee is going?
  • In any event, this is a departure from the Uniform Trade Secrets Act, which permitted injunctions against “threatened misappropriation” without the aforementioned restrictions, because some feared that the “inevitable disclosure doctrine,” which has been expressly rejected in some states, might be used by federal judges to block an employee from taking a new job.

Damages and Attorney’s Fees:

  • Damages for trade secret misappropriation are available in the form of actual losses to the plaintiff, and the value of any separate unjust enrichment on the part of a defendant. Alternatively, damages calculated based on a reasonable royalty for the unauthorized disclosure or use of the trade secret may be awarded.
  • Enhanced damages of up to two-times damages otherwise awarded may be available for willful and malicious trade secret misappropriation.
  • Legal fees may be awarded to a prevailing party, either plaintiff or defendant, where a claim for misappropriation is made in bad faith, a motion for injunctive relief is opposed in bad faith, or the trade secret was “willfully and maliciously misappropriated.”

Whistleblower Protection:

  • There is whistleblower immunity from divulging a trade secret when a person discloses a trade secret to any federal, state or local government official or agency, or to any attorney, solely for the purpose of reporting or investigating a suspected violation of law, or when the disclosure is part of litigation and is filed under seal.
  • There is also whistleblower immunity when someone files an action based on employer retaliation for reporting a suspected violation of law. In this case, one may also disclose the trade secret to that person’s attorney and use it in court provided such filings are made under seal.

Employer Requirements:

  • Companies should review and, if necessary, update their employment and confidentiality agreements and handbooks.
  • A company is only eligible to recover double damages and attorneys’ fees in trade secret litigation if it provides notice to an employee of the whistleblower and confidentiality provisions. The notice requirement may also be met by the employer providing the employee with a cross-reference to a policy document that sets forth the employer’s reporting policy for a suspected violation of law.
  • The term “employee” is defined broadly to include both traditional employees and independent contractors.
  • While the failure to include notice of whistleblower immunity bars the employer from seeking exemplary damages and legal fees in an action against an employee that was not given notice, the DTSA does not otherwise penalize the employer.
  • Since many companies use a variety of agreements to protect confidential information, including employment agreements, standalone confidentiality and inventions agreements, and separation agreements as well as handbooks and policy statements, an immediate review of these documents for compliance should be performed.

DOL Announces Final FLSA Overtime Regulations

E. Jason Tremblay

E. Jason Tremblay

On Wednesday, May 18, 2016, the U.S. Department of Labor’s (DOL) Wage and Hour Division released its final updated FLSA overtime regulations. While some of the changes were expected, there are a number of surprises.

First, the new salary threshold for exempt executive, administrative and professional employees will be $47,476.00 per year (or $913.00 per week). That is more than double the current $455.00 per week but less than the original proposal, which would have boosted the minimum annual salary threshold to over $50,000.00 per year.

Second, the salary basis test has also been amended to clarify that employers may use nondiscretionary bonuses and incentive payments (such as commissions) to satisfy up to 10% of the new salary threshold. This may allow certain employees who do not have an annual salary of at least $47,476.00 to still satisfy one of the overtime exemptions.

Third, in another deviation from the initially proposed regulations, the final regulations require an update of the salary threshold every three years, as opposed to every year, as originally proposed by the DOL.

Fourth, the final regulations also increase the “highly compensated employee” (HCE) exemption to an annual salary threshold of $134,004.00, an upward adjustment from what was anticipated to be an annual threshold of $122,148.00.

Finally, these new regulations will take effect on December 1, 2016, which will provide employers a longer period of time to comply with them, as prior indications were that the final regulations would take effect in July 2016.

In light of the foregoing, all employers must immediately analyze whether current “exempt” employees will satisfy the new FLSA regulations and, if not, develop FLSA-compliant pay plans for employees who have previously been treated as exempt but who will now not be exempt under the new overtime regulations.

Should you have any questions regarding the final FLSA regulations, or should you need assistance complying with the regulations, please do not hesitate to contact E. Jason Tremblay at 312-876-6676 or your designated Arnstein & Lehr LLP attorney.

Please click here for a print-friendly PDF of this post.

Chicago Human Rights Ordinance Amended to Include Military Status

E. Jason Tremblay

E. Jason Tremblay

Chicago has just amended its Human Rights Ordinance to address discrimination targeting current and former members of the military. Effective March 16, 2016, the City of Chicago will prohibit employment discrimination on the basis of military status. An applicant or employee will be able to claim military status protection if he or she is a veteran, on active duty or in the reserves of any branch of the armed forces. These protections are in addition to the existing protections for applicants and employees based on their military discharge status. While these changes will not obligate Chicago employers to give preferential treatment to members of the military, additional care should be taken with respect to any employment decisions made regarding members of the military. Finally, the amendments to the Ordinance do not provide any re-employment right obligations upon Chicago employers, but employers should still be cognizant of any federal and state laws which impose reemployment obligations upon Illinois employers.

If you have any questions regarding the amendments to the Chicago Human Rights Ordinance, please do not hesitate to contact E. Jason Tremblay at 312-876-6676 or your designated Arnstein & Lehr LLP attorney.

DOL Announces That the Exemption Regulations Will Be Published in July 2016

E. Jason Tremblay

E. Jason Tremblay

On February 17, 2016, Patricia Smith, U.S. Department of Labor solicitor, announced that the U.S. Department of Labor Final Rule regarding the Fair Labor Standards Act White Collar Exemption Regulations will be published sometime in July of this year. She added that such Regulations will take effect 60 days after their publication. Accordingly, we anticipate that such Regulations will be effective on employers no later than September 2016. As such, if not done so already, employers should accelerate their efforts to evaluate and confirm that they will be in compliance with the updated FLSA Regulations once they become final. For a summary of the updated Regulations, please click here to view my earlier blog posting.

If you need assistance preparing for the updated FLSA White Collar Exemption Regulations, please do not hesitate to contact E. Jason Tremblay at 312-876-6676 or your designated Arnstein & Lehr LLP attorney.

U.S. Department of Labor Weighs in on “Joint Employer” Standard

E. Jason Tremblay

E. Jason Tremblay

On January 20, 2016, the Wage and Hour Division of the U.S. Department of Labor (DOL) issued an Administrative Interpretation setting forth guidance for when businesses will be deemed “joint employers” under the Fair Labor Standards Act. A copy of DOL’s Administrative Interpretation No. 2016-1 (the “Interpretation”) is attached here for your reference.

The Interpretation makes abundantly clear to businesses that share employees or use contractors or temporary staffing agencies that they may be deemed “joint employers” and become legally responsible for any wage and hour violations committed by the other joint business. The Interpretation goes on to explain two types of joint employment scenarios – “horizontal” joint employment and “vertical” joint employment.

Horizontal Joint Employment

Horizontal joint employment, according to the DOL, refers to situations where two or more entities jointly use the same employees. This would occur, for example, if employees work for two or more businesses that have common ownership and joint control over the employees. The factors considered by the DOL as to whether two entities meet the horizontal joint employment test include, but are not limited to: (1) common owners or managers, (2) coordination of hours, scheduling and business operations, (3) shared control over hiring, firing and other personnel decisions, (4) joint supervision of employees, and (5) use of similar systems, such as the same payroll system. Therefore, by way of illustration, if an employee works 35 hours at restaurant A and 15 hours at restaurant B (and both restaurants are commonly owned), the employee can jointly sue both restaurant A and restaurant B for 10 hours of overtime in the event the employee is not properly paid overtime wages.

Vertical Joint Employment

Vertical joint employment exists when a worker has an employment relationship with one employer, such as a staffing agency or subcontractor, and the facts demonstrate that the worker is “economically dependent” by another, separate entity. An example cited by the DOL in the Interpretation of a vertical joint employment relationship involves a hotel that retains a staffing agency to provide daily custodial services, both of which are directing the staffing agency workers in some fashion. The facts considered by the DOL in evaluating whether entities meet the vertical joint employment test include, but are not limited to: (1) the degree of direction, control and supervision of the work performed, (2) the permanency and duration of the relationship, (3) the repetitive and rote nature of the work, (4) whether the service provided is an integral function, and (5) the location of where the work is performed.

The DOL is the latest of a number of federal agencies issuing guidance on the issue of joint employer liability. Just recently, in 2015, the National Labor Relations Board ruled in Browning-Ferris Industries, 2015 NLRB LEXIS 672 (2015) (click here for link to my prior blog post on this case) that, under the National Labor Relations Act, a company and its contractor can be deemed to be joint employers even when the company did not exercise direct control over its contractors. Similarly, the U.S. Occupational Health and Safety Administration has invoked joint employer arguments to assert safety violations against franchisors and their franchisees. Moreover, almost every day, more FLSA lawsuits are filed against purported joint employers – such as franchisors and franchisees – under joint employer theories seeking to impose liability for purported federal and state wage and hour violations.

While the DOL asserts that its Interpretation does not constitute a policy change, it is clear that the Interpretation, and the DOL’s view on the joint employer standard, will put many companies in the crosshairs of the DOL and at greater risk for minimum wage and overtime violations under the FLSA, especially those companies that rely on staffing firms and contractors.

For further information regarding the DOL Interpretation, or to evaluate whether or not your company may constitute a joint employer, please contact E. Jason Tremblay at 312-876-6676 or your designated Arnstein & Lehr LLP attorney.

NLRB’s New Joint Employment Standard

E. Jason Tremblay

Are You A Joint Employer?

Browning-Ferris Industries of California Case and Its Potential Impact

NLRB's New Joint Employment Standard

By now, most employers are aware of the recent and significant decision from the National Labor Relations Board in Browning-Ferris Industries of California, Inc., 2015 NLRB LEXIS 672 (2015)(“Browning-Ferris”). In that case, the NLRB expanded who qualifies as a “joint employer” and effectively called into question many existing business models and relationships. While currently limited to cases brought before the NLRB, time will tell whether this decision will be adopted by other jurisdictions and agencies throughout the country.

Traditionally, an entity was only determined to be a “joint employer” with another entity if it shared and exercised the right to control or determine essential conditions of employment of the employees of the other entity. By way of example, if one entity controlled or had a direct role in the hiring, firing, supervision or termination of employees of another entity, they would be deemed to be joint employers under common law. Put another way, the emphasis in determining joint employer status has traditionally been the exercise of direct, actual and substantial control over a separate entities’ employees.

Now, it is clear from the decision in Browning-Ferris that in ascertaining whether an entity possesses “sufficient control” over another company’s employees to qualify as a joint employer, the NLRB will not only look to whether an entity exercises control over the terms and conditions of employment, but also whether such control is indirect (e.g., through an intermediary) or whether it has reserved the authority to do so. In other words, a company that has either “indirect control” or the “unexercised potential to control” another entity’s employees will be deemed a joint employer.

The Browning-Ferris decision impacts just about every industry. It particularly impacts staffing agencies who temporarily lend employees to companies. The decision also significantly impacts the franchisor-franchisee business model where, under some franchise agreements and in order to ensure quality control of the franchise’s brand, the franchisor retains rights to control certain terms of employment of its franchisees. Already, cases have been filed against McDonald’s arguing that McDonald’s (as franchisor) is liable for the conduct of some of its franchisees. Similarly, contractors and subcontractors have to be aware of the Browning-Ferris decision as any unexercised right to control the other entities’ employees would very likely lead to the conclusion by the NLRB that both are joint employers.

Currently, the Browning-Ferris decision is limited to cases before the NLRB. However, employers should be aware that if courts and other federal and state agencies, including the U.S. Department of Labor, begin adopting the NLRB’s new joint employer standard, employers will inevitably face expanded coverage and increased liability. And, considering the fact that, just months ago, the DOL issued new administrative guidance confirming its position that “most workers are employees” for purposes of the Fair Labor Standards Act, it would not be surprising if the DOL adopted the NLRB joint employer test in the near future.

While it is undoubtedly too early to tell the long-term ramifications of the Browning-Ferris decision, a brief review of court cases citing the decision are very limited at this point. One case that did cite Browning-Ferris was Nardi v. ALG Worldwide Logistics and Transport Leasing Contract, Inc., 2015 U.S. Dist. LEXIS 123355, Case No. 13 C 8723, (N.D. Ill. Sept. 16, 2015). Nardi was a Title VII sex discrimination and retaliation case brought against a transportation company and its professional employment organization (PEO). While the PEO provided human resources services (such as payroll and benefits administration) to the transportation company, the PEO did not have any control over the day-to-day tasks and terms of employment of the employees of its client. Accordingly, citing Browning-Ferris and other prior joint employer decisions from the Seventh Circuit, the court granted summary judgment in favor of the defendants, finding that the PEO was not a joint employer with its client. This case should give employers some comfort that courts may not follow the NLRB’s lead in making joint employer determinations.

Though the true impact of Browning-Ferris may not be known for years, businesses, particularly those that have contractual rights to affect terms and conditions of another entities’ employees, should take heed of this case and work with legal counsel to assess the risks of being deemed a joint employer, as well as strategize on measures to mitigate those risks.

Should you have any questions regarding this article, or should you want to evaluate your company’s potential joint employer liability under the new and expanded NLRB definition, please contact E. Jason Tremblay at 312-876-6676 or your designated Arnstein & Lehr LLP attorney.