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Employee or independent contractor -- and why does it matter?

Employers are required to pay all employees time-and-a-half once they hit 40 hours in a given workweek, right? Well, not necessarily.

In fact, both federal and Maryland law carve out several exceptions to the overtime rules, including situations involving certain salaried employees as well as "independent contractors."

NLRB Brings Independent Contractor Analysis Back In Line With DOL

The National Labor Relations Board (NLRB) has just overruled a previous case that had expanded the definition of independent contractor for the purposes of the National Labor Relations Act. In its SuperShuttle DFW Inc. decision, the board has brought that definition into greater alignment with the definition used by other agencies such as the Department of Labor and the IRS.

In 2014, the NLRB seemingly rejected the traditional test determining whether a worker was legally an employee rather than an independent contractor. That test takes a number of factors into account to gauge the degree of control exercised by the company vs. the degree of independence claimed by the worker. Under the NLRB's 2014 test, however, workers were likely considered an employee if they were economically dependent on the company.

Can Customers Create A Hostile Work Environment For Workers? Yes.

Can employers be held liable when customers sexually harass workers? Yes, under certain circumstances. Companies have a legal responsibility to protect their workers from a sexually hostile work environment, even when the source of the harassment is a customer.

The issue just arose in a California case in which a female housekeeper alleged that the Marriott hotel she worked for failed to keep her safe from male guests' sexual harassment and misconduct. Although the particular case is being brought under California law, federal anti-discrimination laws also require employers to protect their workers from customer harassment.

'Service' Or 'Emotional-Support' Animal? What's The Difference?

dog at work.jpegIn recent years, there has been a substantial increase in the number of registered service animals and emotional-support animals in the United States. But despite this spike, many people still don't know that there is a significant difference between "service" animals and "emotional-support" animals.

For example, under the Americans with Disabilities Act (ADA), a "service" animal is defined as a "dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability." In addition, the tasks performed by the service dog must be "directly related" to the disability of the individual.

Beyond The DOL, IRS Is Also Scrutinizing Employee Classification

With the "gig economy" in full swing, state and federal agencies have an incentive to scrutinize whether workers are properly classified as independent contractors or employees. After all, employers are not responsible for paying half of an independent contractor's payroll taxes or the unemployment insurance and workers' comp required by law. And, independent contractors lack many workplace protections that employees are entitled to receive.

The question of whether a worker is a statutory employee or an independent contractor is a legal one, largely determined by the federal Fair Labor Standards Act and corresponding state laws. Employers don't simply choose which classification is most convenient, but must have a reasonable basis to believe the worker is classified properly.

Is Your Organization Negotiating Fairly With Applicants Of Color?

We've all heard of the gender pay gap, but what about the racial pay gap? You may know that, in 2017, American women earned about 80.5 cents for each dollar earned by similarly situated men. Far fewer people are aware of the pay disparity between whites and African-Americans and Hispanics.

The racial pay gap is slightly larger than the gender pay gap, according to 2016 numbers from the Pew Research center. That research found that college-educated African-American and Hispanic men only earned 80 cents for each dollar earned by college-educated white men.

Employee Rights During A Government Shutdown

We are living through the most extended government shutdown in American history. Approximately 800,000 federal employees and 500,000 federal contractors have now gone without a paycheck, and there is no end in sight. Of the unpaid federal employees, more than 420,000 must continue working.

While those affected by the shutdown may feel stripped of their right to compensation for work completed, some rights still remain during a shutdown. If your rights have been violated, you can take legal action.

Analysis: 56 Percent Of Workers Over 50 Are Laid Off, Pushed Out

The Age Discrimination in Employment Act (ADEA) was passed in 1967. A Labor Department report leading to its passage noted that, at the time, half of all job ads in the private sector explicitly barred applications from people 55 or over. A quarter excluded anyone over 45.

The ADEA prohibits age discrimination against those 40 and over in any aspect of employment, from hiring, pay, benefits, working conditions and opportunities to layoffs and other terminations. It also prohibits using pretexts for age discrimination, such as targeting older workers for layoffs because they make higher salaries. Nevertheless, age discrimination continues to be a common complaint.

D.C. Circuit Overturns NTSB's 'Joint Employment' Liability Rule

In a 2015 case involving Browning-Ferris Industries Inc., the National Labor Relations Board revised its standard for determining when two or more organizations are considered joint employers for the purposes of federal labor and employment law. When companies that are otherwise considered employers "share or codetermine those matters governing the essential terms and conditions of employment," the board held, those companies are both liable for employment-related issues.

This was an effort to hold companies responsible for workers they contract for through temporary employment agencies or who are hired by franchisees. As the board noted at the time of its decision, over 2.87 million American workers were employed by temporary staffing agencies in August 2014. The 2015 standard was meant to apply the law to a changing economic landscape.

How To Keep A Written Warning From Sparking Confusion And Litigation

Written warnings are meant to document inappropriate behavior or performance issues, creating a record that can be referred to later or ultimately used to justify termination.

Unfortunately, many written warnings are too vague to be actionable -- or so detailed they invite disputes. A useful written warning is specific enough that everyone understands what is being warned about. At the same time, you should avoid overkill and legal conclusions. Here are some tips:

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