Employment
Subscribe to Employment's Posts

AB 5 Contractor-Classification Battles Set to Heat Up in 2021

Employers grappling with independent-contractor classification had a busy 2020—and should expect a flurry of additional activity this year. Few areas in employment law are changing as rapidly. Last year, many concerned about the future of contractor-classification laws paid careful attention to California and AB 5, which went into effect on Jan. 1, 2020, and codified the California Supreme Court’s landmark decision in Dynamex Operations West Inc. v. Superior Court of Los Angeles.

In a recent article for Law360, McDermott partners Ellen Bronchetti and Ron Holland consider the impacts of the California law on the gig economy, employer classification tests and organized labor in the United States.

Access the article.




Predictions on the Long-Term Outlook for Remote Work

With a second wave of COVID-19 infections forecasted by some experts and many companies actually seeing improvements in productivity as their employees work from home, it’s very possible that the current state of affairs could become a new normal, with companies either continuing remote work indefinitely or at least revisiting their existing policies around occasional remote work.

TechStaffer polled business leaders and managers, including McDermott partner Carole Spink, to get input on where their organizations stand on their long-term outlook for remote work.

Access the article.




Lessons in Crafting Valid Employment Class Settlements

Aspiring employment lawyers ask questions of their mentors. Try this one: Did you ever go to trial on a wage and hour class action?

The answers—ranging from “no” to “almost but …” and “rarely” to “once”—reveal an important truth: Employment lawyers handling class actions better know the inner workings of getting class settlements approved.

Writing for Law360, McDermott partner Christopher Braham examines how approval triggers play a role in employment class actions.

Access the article.




Racial Diversity, Gender Equality and Corporate Governance: An Update

Corporate governing boards have a substantial homework assignment given multiple important developments affecting board composition and oversight of workforce culture. These developments encompass new surveys from prominent governance and consulting sources, notable litigation trends and a new state law. Collectively, they represent an accelerated focus by third parties on how directors are selected and employees are retained.

Writing for Columbia Law School’s Blue Sky Blog, McDermott partner Michael Peregrine reports on key developments in the corporate governance space.

Access the article.




Senate Rules Could Pose Hurdles for Vaccine Funds

Progressive Democrats in the US Senate are hoping to use a streamlined process that needs just 50 votes to approve a COVID-19 relief package that includes billions in new funding for vaccines and other supplies. But some experts are already casting doubt on that plan.

STAT spoke with nine current and former congressional staffers and budgetary experts, including McDermottPlus consultant Rodney Whitlock, on the possibility of public health funds receiving approval through the budget reconciliation process.

Access the article.




Hurry Up and Wait: Department of Labor Delays Implementation of New Worker Classification Regulations

Businesses strive to draw the line correctly on who is an employee versus who is an independent contractor. New regulations issued by the Department of Labor (DOL) in early January promised to help. See, 29 CFR §§795.100. But by late January, those regulations under the Fair Labor Standards Act (FLSA) were frozen.

Unlike laws passed by Congress, administrative regulations are far more easily altered when a new president takes office. The regulations published by President Trump’s DOL in January had an effective date of March 8, 2021. Now, President Biden’s DOL will have an additional 60 days beyond that effective date to announce what will happen next.

Those new regulations provided a much simpler test for classifying workers. While including five factors, the results turned on two of those factors: (1) the nature and degree of the worker’s control over the work and (2) the worker’s opportunity for profit/loss based on personal initiative or investment. Most significantly, those regulations focused on the actual practices, rather than what may be possible.

This same issue may also arise under other federal statutes as well as state laws, including those governing on whom unemployment insurance taxes must be paid. With multiple statutes (each with its own distinctive test), drawing the line between independent contractors and employees correctly turns not only on meeting whatever the ultimate FLSA test turns out to be.

The most difficult is the so-called ABC test:

  1. The worker is free from the control and direction of the hiring entity in connection with the work’s performance, both under the contract for the performance of the work and in fact.
  2. The worker performs work that is outside the usual course of the hiring entity’s business.
  3. The worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed.

That is the test that is embedded in proposed federal legislation: the Protecting the Right to Organize (PRO) Act. That is also now the official test for most jobs under most California laws.




Uniformity Needed in State Teleworking Guidance, Practitioners Say

The patchwork of teleworking guidance issued by states during the COVID-19 pandemic is creating withholding challenges for employers that could be unconstitutional, according to tax practitioners.

In a recent article in Tax Notes, McDermott partner Alysse McLoughlin outlined employer tax concerns amid an increasingly remote workforce.

Access the article.




Launching Advanced Talent Acquisition Tools to Tackle Global Employer Recruiting Challenges in the Wake of COVID-19

In the United States, the COVID-19 pandemic initially created mass redundancies, as many employers, especially those in hard-hit industries like travel, accommodation and entertainment, were forced to part with talented employees they would normally retain. This sudden pressure to downsize created a glut of available talent composed of the most qualified pool of workers in recent memory. Faced with an uncertain future, these candidates were highly motivated to secure new employment right away.

In McDermott’s latest installment of International News, partner Richard Scharlat is joined by AC Lion’s Alan Cutter to explore the cutting-edge strategies employed by recruiters to facilitate the efficient and targeted placement of talent amid the global health crisis.

Access the article.




What’s Expected in Employment Law in 2021?

Last year ended as an unprecedented and historic year, with far-reaching effects across diversity, equity and inclusion, employment practices and workplace standards. In a recent article for International Law Office, partners from McDermott’s Employment group highlight what changes are expected in 2021 and how these may affect employers and employees.

Access the article.




Can Employers Make COVID-19 Vaccination Mandatory?

Can employers make COVID-19 vaccination mandatory?

Yes, with some exceptions. Experts say employers can require employees to take safety measures, including vaccination. That doesn’t necessarily mean an employee would get fired if they refuse, but they might need to sign a waiver or agree to work under specific conditions to limit risk.

With vaccine rollout underway in the United States, McDermott partner Michelle Strowhiro outlines considerations for employers in a recent article for The Associated Press.

Access the article.




STAY CONNECTED

TOPICS

ARCHIVES