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Q: Does federal antitrust law bar independent contractors from engaging in a group boycott to increase wages and alter conditions of employment?

A: No. The First Circuit Court of Appeals recently held that an individual’s independent contractor status does not bar application of the labor-dispute exemption to antitrust law, which exempts collusion among potential competitors for the purpose of increasing wages or improving conditions of employment.

Q: Now that DOL-OSHA announced its COVID-19 vaccine ETS for private-sector workers, what does my company need to do to adhere to the guidelines?

A: On November 4, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced an emergency temporary standard (ETS), containing the anticipated COVID-19 vaccination rule covering private companies with 100 or more employees. The ETS became effective immediately on November 5 upon its publication in the Federal Register. On November 6, the Fifth Circuit Federal Court of Appeals granted an emergency motion to stay enforcement of the ETS effectively nationwide, pending further action by the court, which could come as early as November 9 at 6 p.m. ET. Other challenges to the ETS’s enforcement have been filed in the Eighth, Sixth, and Eleventh circuits thus far.

Q: Who are the newest members of the National Labor Relations Board (NLRB), and what does their arrival mean for the future of micro-units?

A: Party control of the National Labor Relations Board recently shifted to the Democrats when the Senate approved two Biden appointees. In August, longtime union-side attorneys Gwynne Wilcox and David Prouty joined fellow Democrat Chairman Lauren McFerran and Republican appointees John Ring and Michael Kaplan on the five-member board.

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.

Troutman Sanders and Pepper Hamilton officially became Troutman Pepper (Troutman Pepper Hamilton Sanders LLP), a national law firm of 1,100 attorneys in 23 U.S. offices. Our new firm offers clients greater resources and bench strength, enhanced practices, and expanded geographical reach.

We are now one of the 50 largest law…

Authors
Richard Gerakitis, Partner, Troutman Sanders
Emily E. Schifter, Associate, Troutman Sanders
Susan K. Lessack, Partner, Pepper Hamilton
Tracey E. Diamond, Of Counsel, Pepper Hamilton
Lee E. Tankle, Associate, Pepper Hamilton

Hot on the heels of the temporary rule issued April 1, 2020 regarding the Families First Coronavirus Response Act…