Todd Lebowitz

Todd Lebowitz

BakerHostetler

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SEC Enforcement Actions May Require Changes to Severance Agreements

Public companies should revisit their template severance agreements, in light of two recent orders by the Securities and Exchange Commission (SEC). Standard severance clauses covering (1) confidential information and (2)...more

8/19/2016 - Confidential Information Dodd-Frank Enforcement Actions Notification Requirements Rule 21F SEC Severance Agreements Whistleblowers

NLRB Makes Up More New Rules on Joint Employment

Remember that kid in elementary school who, whenever you were winning at some made-up playground game, would change the rules in the middle? “Kids can be so unfair,” your parent might have said, trying to console you. “But...more

7/18/2016 - Browning-Ferris Industries of California Inc. Collective Bargaining Joint Employers NLRB Staffing Agencies Temporary Employees

Labor Department Announces Plan to Find Joint Employment — in All Directions

When I get lost (which is often, say my kids), I turn to a map. Fortunately, I always have my iPhone on me, so the Maps app can generally get me where I am going. The Wage and Hour Division needs no map to find where it...more

1/27/2016 - DOL FLSA Joint Employers Staffing Agencies Wage and Hour

New Year's Resolution for 2016: Avoid Independent Contractor Misclassification

The use of nonemployee workers is more prevalent than ever, and challenges to these relationships are growing just as rapidly. Entire business models are at stake. The Internal Revenue Service (IRS), the Department of...more

1/6/2016 - Independent Contractors IRS Lyft Misclassification NLRB Uber Wage and Hour

Oregon Limits Criminal Background Inquiries by Employers

Oregon became the seventh state to ban the box for private employers, prohibiting any questions about criminal background on employment applications and at any time before an initial interview takes place. Oregon’s law took...more

1/5/2016 - Ban the Box Criminal Background Checks Employment Discrimination Hiring & Firing

Philadelphia Shows Brotherly Love for Ex-Felons Seeking Jobs

Quick quiz: Which of the following statements by an employer is illegal in Philadelphia? (A) I would never hire a vegetarian. (B) No ugly people will be hired here. (C) I hate dyed hair. If the carpet doesn’t match the...more

12/22/2015 - Ban the Box Criminal Records Employer Liability Issues Hiring & Firing Screening Procedures

NLRB: Nurses Entitled to Union Representation at Peer Review Meeting

The NLRB, in an August 27, 2015, decision, held that two nurses who were requested to voluntarily appear before a hospital’s Nursing Peer Review Committee were entitled to have their union representatives attend the peer...more

9/15/2015 - Disciplinary Proceedings Healthcare Hospitals Licenses NLRB Nurses Peer Review Union Representatives Unions Work Suspensions

NLRB Blows Up Staffing Agency Model: Rewrites Joint-Employer Test

Boom! In a 3-2 decision, the National Labor Relations Board spontaneously redefined joint employment in a way that threatens to turn almost every company that works with a staffing agency into a joint employer for collective...more

8/31/2015 - Browning-Ferris Industries of California Inc. Collective Bargaining Franchisee Franchisors Hiring & Firing Joint Employers NLRA NLRB Popular Staffing Agencies Unions

DOL Memo Provides Script for FLSA Collective Actions Alleging Independent Contractor Misclassification

The all-time best The Far Side cartoon (based on an unscientific survey, sample size of me) is the one with two deer standing in the forest, one with a red circular target imprinted on its chest. The other deer says, “Bummer...more

8/19/2015 - Class Action Collective Actions DOL Employee Benefits Exempt-Employees FLSA Independent Contractors Minimum Wage Misclassification Unpaid Overtime Wage and Hour Withholding Tax Workers' Compensation Claim

DOL Meets The Far Side, Targets Independent Contractor Relationships

The all-time best The Far Side cartoon (based on an unscientific survey, sample size of me) is the one with two deer standing in the forest, one with a red circular target imprinted on its chest. The other deer says, “Bummer...more

7/16/2015 - Class Action DOL FLSA Independent Contractors IRS Misclassification Wage and Hour Young Lawyers

Unpaid Internships Given New Life by the Second Circuit

This Blog is Not about Owen Wilson and Vince Vaughn, But… “The Internship” fails the first test of merit for a comedy: “Is it funny?” I find that opening line in a review from The New Yorker hilarious. (Funnier than the...more

7/7/2015 - Class Action Employer Liability Issues Entertainment Industry Fox Searchlight Pictures Minimum Wage Multi-Factor Test Unpaid Overtime Wage and Hour

FedEx to Pay $228 Million in Independent Contractor Misclassification Settlement

Things that $228 Million will buy: – LeBron James’s waterfront mansion in Miami, listed for $15 million – A 710-year old copy of the Magna Carta, sold in 2007 for $21.3 million – The Oakland A’s, sold in 2005 for $180...more

6/17/2015 - Class Action Corporate Counsel FedEx Independent Contractors Misclassification Settlement Shipping Trucking Industry Wage and Hour Young Lawyers

Supreme Court Refs Call Foul on EEOC, NBA Playoff Edition

The heads of officiating at the Supreme Court called a technical foul on the EEOC for being too Cavalier about its obligation to conciliate before lacing up its Converse All-Stars and heading to court. Mach Mining v. EEOC...more

4/30/2015 - Conciliation Discrimination EEOC Judicial Review Mach Mining v EEOC Mining SCOTUS Sex Discrimination Title VII

Two California Juries to Decide Whether Uber and Lyft Drivers Are Employees or Contractors

The core business models of both Uber and Lyft have just been turned over to two separate California juries. These groups of randomly selected citizens will determine whether the drivers for both companies have been properly...more

4/3/2015 - Class Action Drivers Employee Definition Employer Liability Issues Independent Contractors Lyft Uber

No Tag-Backs! Employee Is Entitled to FMLA Coverage, Even Though Not Eligible

The playground game of tag has been played since at least the Cretaceous Period, with efforts by paleontologists to verify earlier origins of the game inconclusive to date. As all sophisticated tag players know, the unwritten...more

2/13/2015 - Employee Rights Employer Liability Issues FMLA

No Number, No Job: Classic Rock Song Titles Explain It Best

When job applicant Don Yeager refused to provide a social security number to his prospective employer, he was shown the door. He sued, claiming that identifying himself by a number violated his religious beliefs. In a short...more

2/6/2015 - Corporate Counsel

Latest Scoop From New Jersey on Independent Contractor Misclassification May Cause Employers Brain Freeze

An ice cream parlor in Dania Beach, Florida, features The Original Kitchen Sink Sundae, which contains up to 30 scoops, plus chocolate syrup, marshmallows, nuts, whipped cream, and a variety of berries. Customers can choose...more

1/21/2015 - Delivery Drivers Employee Definition Employer Liability Issues FLSA Independent Contractors IRS Misclassification Restaurant Industry Wage and Hour

Volunteers Alleging Employment Status Lose Title VII Case, but Court Applies Vigorous Analysis First

Everyone’s looking for volunteers. The Salvation Army recruits helpers with the promise of “Doing the most good.” Volunteers of America invites participation by reminding the public “There are no limits to caring.” Even...more

12/18/2014 - American Red Cross Employee Definition Employer Liability Issues Title VII Volunteers

DOL Refills States’ War Chests for Independent Contractor Misclassification Crackdown

The U.S. Department of Labor has awarded $10.2 million in grants to 19 states for continued independent contractor misclassification detection and enforcement. The grants are focused on unemployment insurance programs and,...more

11/17/2014 - DOL Employer Liability Issues Federal Grants Independent Contractors Misclassification Popular Strategic Enforcement Plan Unemployment Insurance

New California Law Imposes Joint Liability on Businesses and Contract Vendors for Wage Violations and Workers’ Compensation...

For companies using independent contractors in California, 2014 has been a difficult year, with several significant court decisions threatening the contractor model. In June, the Ninth Circuit rejected the parties’ choice of...more

11/11/2014 - Employer Liability Issues Independent Contractors Joint and Several Liability Joint Employers Misclassification Staffing Agencies Wage and Hour

Publix to Pay $6.8 Million Settlement over Noncompliant Background Check Forms

If your company’s background check disclosure form includes a release of liability, take it out. Less than a year after a federal district court in Pennsylvania ruled that Closetmaid violated the Fair Credit Reporting...more

11/4/2014 - Background Checks FCRA FTC Publix

Conservative Kansas Joins the Liberal Ninth Circuit in Rejecting the Independent Contractor Classification of Delivery Drivers

Last month we blogged about two Ninth Circuit opinions that deemed FedEx Ground drivers to be employees rather than independent contractors under California and Oregon law. Last week the Kansas Supreme Court joined them,...more

10/14/2014 - Corporate Counsel Delivery Drivers Employee Definition Employer Liability Issues FedEx Independent Contractors Misclassification

Court Dismisses EEOC’s Attack on Severance Agreements, But Not on the Merits

The EEOC’s lawsuit against CVS, which alleged that the company’s severance agreements were impermissibly restrictive, has been dismissed, but not for the reasons employers would have hoped. EEOC v. CVS Pharmacy, Inc., No....more

10/14/2014 - Conciliation CVS Dismissals EEOC Enforcement Actions Rules of Civil Procedure Separation Agreement

NLRB Adopts New Test for Independent Contractor Misclassification, Applies it to Find FedEx Drivers are Employees Who Can Unionize

The NLRB has tossed a new vegetable into the enormous salad of independent contractor misclassification tests. As companies might expect, the new vegetable smells rotten. Companies who wish to analyze whether their...more

10/13/2014 - Employer Liability Issues FedEx Independent Contractors IRS Misclassification NLRB Right to Control Wage and Hour

U.S. Open Umpires and Linesmen Are Independent Contractors, Court Rules

In an opinion that disappointingly failed to take advantage of countless pun opportunities, a federal judge in New York otherwise got it right, ruling that the United States Tennis Association properly classified U.S. Open...more

9/24/2014 - Classification Employer Liability Issues FLSA Independent Contractors Sports

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