Q: What are the details of Assembly Bill (AB) 2257 and how does it change the way I utilize independent contractors?

A: On September 4, 2020, Gov. Gavin Newsom signed Assembly Bill (AB) 2257, which substantially revises and clarifies the exemptions to AB 5, a recently passed California statute that effectively precludes many industries from being able to utilize independent contractors.

AB 5 was signed into law on January 1, 2020, and requires using the “ABC Test” to determine whether a worker in California is an employee or independent contractor under the Labor Code, the Unemployment Insurance Code, and the Industrial Welfare Commission wage orders. Under the ABC Test, to defeat claims premised on independent contractor misclassification, a defendant must demonstrate: (A) the worker is free from control and direction of the hiring entity in connection with performing the work, both under contract and in fact; (B) the worker performs work outside the usual course of the hiring entity’s business, and; (C) the worker customarily engages in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. Many industries have complained about component (B), which effectively precludes independent contractors from performing work in the business of the hiring company. Continue Reading AB 2257: A Significant Expansion of California Independent Contractor Laws

Q: What does the latest decision on joint employer liability mean for businesses?

A: On September 8, 2020, the United States District Court for the Southern District of New York issued a decision overturning the U.S. Department of Labor’s (DOL) March 2020 Final Rule, which had adopted a narrow four-factor test for determining joint employer liability in “vertical” employment relationships, such as contractor/subcontractor, franchisor/franchisee and company/staffing agency relationships. The test set forth in the Final Rule looked at whether the putative joint employer (i) hires or fires the employee; (ii) supervises and controls the employee’s work schedule or conditions of employment to a substantial degree; (iii)  determines the employee’s rate and method of payment; and (iv) maintains the employee’s employment records. These factors looked to the degree of control as the standard for determining joint employment, which was a sharp departure from prior DOL guidance which looked more broadly at the economic dependence between the parties. Continue Reading Southern District of New York Judge Strikes Down Department of Labor Standard for Joint Employment

HiringToFiring.Law is your go-to blog for information and guidance on every phase of employment — from interviewing potential candidates, to the first day of work, to the difficult decision to let someone go. Our authors cover the intersection of employment law, human resources counseling and employment litigation, where no question is too small in the effort to protect employers from risk.

Our blog is published by members of our Labor & Employment team and edited by Tracey Diamond, an experienced employment lawyer and frequent writer and speaker on human resources issues.

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Reminder: HR Law Matters will be merging with Hiring to Firing, effective September 16. Our combined offering now has a deepened perspective to the ever-changing world of labor and employment law. Hiring to Firing will continue to be your go-to-resource on topics such as:

  • Discrimination, Harassment and Retaliation
  • Wage and Hour
  • Independent Contractor classification
  • COVID-19
  • Human Resources & Workplace Issues
  • Labor
  • Immigration
  • Trade Secrets/Data Privacy
  • Restrictive covenants
  • Benefits & Executive Compensation
  • Employment Laws

Q: I heard New York State recently enacted another sick leave law. I thought New York already enacted a COVID-19 sick leave law back in March. How is this new one different?

A: Effective September 30, 2020, New York will have two separate sick leave laws: one specific to COVID-19 (NY COVID-19 Sick Leave Law), and one that is general (New York Sick Leave Law). The covered reasons for leave are more expansive under the New York Sick Leave Law. In addition, unlike the NY COVID-19 Sick Leave Law, which is expected to expire at the end of the pandemic, the New York Sick Leave Law is expected to be permanent.

While employees start accruing New York Sick Leave on September 30, 2020, they may not use the sick leave until January 1, 2021. Continue Reading New York Sick Leave Goes Into Effect on September 30, 2020

HR Law Matters will be merging with Hiring to Firing, effective September 16. Our combined offering now has a deepened perspective to the ever-changing world of labor and employment law. Hiring to Firing will continue to be your go-to-resource on topics such as:

  • Discrimination, Harassment and Retaliation
  • Wage and Hour
  • Independent Contractor Classification
  • COVID-19
  • Human Resources & Workplace Issues
  • Labor
  • Immigration
  • Trade Secrets/Data Privacy
  • Restrictive Covenants
  • Benefits & Executive Compensation
  • Employment Laws

Q. Are there any COVID-related tax incentives that could benefit employers and employees?

A. Employers and employees alike continue to feel the impact of the COVID-19 pandemic. Many employers have reduced revenues and need to conserve resources. Many employees have been furloughed or permanently laid off and may need to prematurely access vested retirement benefits to make ends meet. Other employees need leave from work due to their own or a family member’s COVID-related illnesses. COVID-related tax incentives fall into two broad categories: incentives that advantage employers and incentives that advantage employees. Our Firm’s prior alert, Revised Summary of CARES Act and FFCRA Tax Credit and Payroll Tax Relief, provides an overview of the tax advantaged programs that are available to employers. These generally advantage the employer by providing a credit to the employer’s payroll taxes or by providing a low interest loan to the employer. There are also programs that an employer can implement that can save the employer money in the short- and long-term. In addition, there are programs that ease an employee’s access to amounts the employee has accrued under an employer’s tax qualified retirement program, and others that permit employers to provide employees with certain special benefits during these difficult times. Employees can even provide assistance to others impacted by COVID-19 through leave sharing/donation programs. Each program is outlined below. Continue Reading PROVIDING COVID-19 FINANCIAL RELIEF: How to Free Up Access to Employer Assets and/or Ease Employee Access to Vested Benefits

On July 27, 2020, the Virginia Department of Labor and Industry (DOLI) adopted a first-of-its-kind statewide regulation mandating all employers adopt varying levels of safeguards to combat the COVID-19 pandemic. In this advisory, we will address a number of the compliance questions employers face regarding the Virginia Occupational Safety and Health (VOSH) Emergency Temporary Standard (ETS) and outline the rule’s more prominent features. While in many respects the ETS adopts existing CDC/OSHA guidance and Governor Northam’s executive orders, there are important distinctions. The ETS is more than 40 pages, but we will address its core provisions, which require employers to engage in the following: Continue Reading Virginia Issues New COVID-19 Occupational Health and Safety Rules

Q. How will the federal court decision impact business policies and practices that address FFCRA leave?

A. On August 3, 2020, the U.S. District Court for the Southern District of New York struck down four parts of the regulations issued by the U.S. Department of Labor (DOL) implementing the Families First Coronavirus Response Act (FFCRA). As a result of the decision: Continue Reading Federal Court Decision Changes How Employers Must Implement Families First Coronavirus Response Act

Q. Have there been any changes to the CDC Guidance on testing?

A. Until late July, the CDC offered a test-based or symptom-based strategy to govern the timing of “discontinuing isolation” for a person known or suspected to be infected with COVID-19. In an abrupt change in guidance, the CDC announced a test-based strategy is no longer recommended to determine when to discontinue home isolation, except in certain circumstances. The CDC now recommends following only a modified symptom-based strategy, which means: Continue Reading COVID-19 Testing No Longer Generally Recommended for Discontinuing Isolation, CDC Says