Employment Law This Week®: NLRB Joint-Employer Case Overturned, Kaplan Confirmed to NLRB, Eighth Circuit Nixes Non-Compete, Police Lose Overtime Suit

by Epstein Becker & Green
We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode!

This week’s stories include ...

(1) D.C. Circuit See more +

We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode!

This week’s stories include ...

(1) D.C. Circuit Overturns NLRB Joint-Employer Case

Our top story: The U.S. Court of Appeals for the District of Columbia Circuit reverses the National Labor Relations Board (“NLRB” or “Board”) in a joint-employer case. A three-judge panel held that the NLRB did not follow consistent precedents in finding that CNN was a joint employer of a group of contracted technicians. The NLRB decided this case prior to changing the joint-employer standard in Browning Ferris. So, the court did not consider the new indirect control standard. Instead, the court focused only on how the NLRB’s previous test was applied in this case. Employers and other interested parties continue to await the court’s ruling in Browning-Ferris to see whether it will reject the looser test that the Board adopted there. John Fullerton, of Epstein Becker Green, has more:

“In its well-publicized decision in Browning-Ferris in August of 2015, the Board reviewed decades of joint-employer precedent, acknowledged that direct and immediate control had been the applicable standard in the past but decided to overrule or reverse that standard and implement a new standard going forward. The issue is that the CNN decision of the Board came down in March of 2015, five months prior to the Browning-Ferris decision. And, in the CNN decision, the Board did not apply the direct and immediate control standard that the Browning-Ferris decision said was the applicable standard in the past. The Court of Appeals vacated the unfair labor practice charges that were based on the joint-employer finding against CNN, because the Board had not engaged in a proper analysis or explanation of why it was departing from the existing joint-employer standard.”

(2) Marvin Kaplan Confirmed for NLRB Seat

The NLRB gains a second Republican member, but the Republican chairman announces he’ll leave the Board later this year. A week after the Senate confirmed President Trump’s first nominee, Marvin Kaplan, to a seat on the NLRB, current Chair Philip Miscimarra announced that he will not seek a second term. His term expires on December 16 of this year. A Senate vote on the nomination of William Emanuel, President Trump’s second Board nominee, has not been scheduled, but it is expected in September. Emanuel’s confirmation would give Republicans a 3-2 majority for the first time in nine years, at least until Miscimarra departs.

(3) Eighth Circuit Nixes Non-Compete for Independent Contractor

An independent contractor bought supplies from a farm company in Iowa and sold them at a markup. After he ended his relationship with the business, he sold competing products to the customer base that he built while contracting with the company. The company sued, alleging violation of its non-compete agreement. The three-judge panel upheld a district court decision releasing the contractor from the agreement. The Eighth Circuit concluded that the defendant’s customers belonged to him rather than the company, and that the agreement was not necessary to protect the business. Thus, the Eighth Circuit found the non-compete to be unreasonable and unenforceable.

(4) Chicago Police Officers Lose Overtime Suit for Off-Duty Work

Where there is no uniform policy discouraging overtime reporting, there is no violation of the Fair Labor Standards Act for failing to pay overtime that was not reported, says the Seventh Circuit. A collective of Chicago police officers claimed that they failed to receive overtime pay for off-duty work performed on city-issued BlackBerrys. The Seventh Circuit found that the Chicago Police Department had a process allowing the police officers to record overtime hours worked, but the officers did not submit these off-duty hours for overtime pay. The Seventh Circuit also found that there was no policy or practice to discourage the officers from reporting these hours.

(5) Tip of the Week

Tracy Van Duston, Senior Recruiter and Account Manager at NRI Staffing, provides some advice on implementing a painless recruitment process:

“Here are five tips to help you implement a painless recruitment process and minimize risk. Number one, put in more work up front. Really take the time to analyze the position to gain a clear idea of what you’re looking for in a candidate. Number two, if this is an established position, ask yourself what personality traits and soft skills have worked well in the past. Also ask yourself what has not worked well. ..."

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