All posts by Michelle Littlewood

Tennessee Supreme Court – Workers’ Comp Laws Do Not Protect Applicant

The Supreme Court of Tennessee ruled in favor of an employer who failed to hire a job applicant because of concern that the applicant would file a workers’ compensation claim against the employer.

The Court denied the applicant’s claim reasoning that because Tennessee is an employment-at-will state there is no cause of action under Tennessee’s workers’ compensation laws for failure to hire.  The Court recognized that an employee who is fired after filing a claim does have a claim for wrongful termination, but similar protection is not afforded to applicants.

NLRB – Big News On “Joint Employers”

The National Labor Relations Board made a major change to the long-standing test for determining whether a joint employer relationship exists.  The 3-2 decision will have a major impact for franchiser businesses, multi-location businesses, and owners of multi-business.

For decades the NLRB has determined joint-employer status by determining whether the putative joint employers each retained significant control over the terms and conditions of employment. The new test defines the relationship in much broader terms and makes it easier for the Board to make a finding of joint-employer status.

Sidley-Austin LLP , a employment centered law firm, provided a succinct overview of the NLRB’s new test for determining joint-employer status. Most significantly, the Sidley article makes the following points:

  • The new test will find that a putative employer is a joint-employer so long as it is an employer within the meaning of the common law and if it shares or co-determines those matters governing the essential terms and conditions of employment.
  • To determine the common law prong of this test, the Board will look to whether the putative employer retained for itself the right to control the terms and conditions of the workers it uses.
  • To determine whether two entities ‘share or co-determine those matters governing the essential terms and conditions of employment,’ the Board stated that it will simply ‘consider the various ways in which joint-employers may ‘share’ control over terms and conditions of employment or ‘co-determine’ them.’
  • The Board expressly declined to delineate all the ways in which dual entities may “share” control or “co-determine” terms and conditions of employment, stating instead that what constitutes a sharing of control or co-determination of terms and conditions of employment will depend on the circumstances of each case.”
  • Indirect control through the setting of maximum wages, production standards and shift times is sufficient to find a joint-employer relationship.

At a minimum, this decision requires that putative employers take a closer look at their relationship and how employees are controlled and managed.







Connecticut Protects Employee Online Accounts

Connecticut passed legislation prohibiting employers from requesting or requiring employees and applicants to provide log in information for personal online accounts.  The law is called “An Act Concerning Employee Online Privacy” and is effective October 1, 2015.

The new law, like most enacted in other states, also prohibits employers from “terminating, disciplining” employees who refuse to provide online account information.  Similarly, the law makes it unlawful for an employer to refuse to hire an applicant where the applicant has refused to provide online information.

The full text of the new law is available here.

2016 Federal Per Diem Rates Released

For private sector employers, the federally issued per diem rates are used to determine whether certain employee reimbursements are excluded from an employee’s taxable income.  Per diem allowances equal to or less than the federal rates can, and should, be excluded from taxable income.  Rates exceeding the federal rates must be treated as taxable income.

Certain localities will have different rates, however the majority of areas in the Continental United States will use the per diem rate of $140 ($89/lodging, $51/meals and incidental expenses).  This is an $11 increase from 2015.

If you are unsure of whether this rate applies to your particular locality, employers may choose to use the “high-low” rates.  These rates for 2016 have not yet been set.  For additional information on using the “high-low” rate, go to




No Break for McDonalds

The National Labor Relations Board continues to pursue its case against McDonalds, claiming that franchisees and McDonalds’ corporate are “joint employers” under the law.  If the Board is successful, corporate could be held liable for employment related claims brought against individual franchises (e.g., unlawful termination, wage and hour violations, sexual harassment).

Last week, McDonalds’ motion for a “bill of particulars” was denied.  A bill of particulars would have provided McDonalds with details about the facts and law supporting the Board’s position.

Joint employment is normally only found when “one company exerts direct and immediate control over essential terms and conditions of employment of another company’s employees, including hiring, firing, discipline, supervision and direction.”  General Counsel for the NLRB has stated that the agency intends to seek a much broader definition of the term “joint employment”.  For more details, see a recent blog post by the national employment law firm, Littler Mendelson.

The franchise industry waits in great anticipation for the Board’s decision and expected change in the test for joint employment.


Can a Notary Public Complete an I-9 Form?

Employees are responsible for completing Section 1 of the I-9 form to demonstrate authorization to work in the United States.

Employers, or their “authorized representative“, are responsible for inspecting the document provided by the employee and recording certain information in Section 2 of the I-9 form.  For multi-state employers, a notary public is often hired to act as the company’s “authorized representative”.

Is a Notary Public an Acceptable “Authorized Representative”?

The answer depends in part on whether the employer hires in the state of California.  The U.S. Citizenship and Immigration Services (USCIS) permits an employer to use a notary public to complete the Section 2 of the I-9 form.  California, however, does not permit such use of a notary public.

The California Secretary of State recently opined that only a notary public that is also a bonded immigration consultant can be used to complete Section 2 on behalf of an employer.  Therefore, verify that that the notary is qualified in California before authorizing the notary to complete the employer portion of the I-9.

Delaware Enacts New Social Media Policy

Effective as of August 7, 2015, Delaware employers are prohibited from engaging in the following activities:

  • Asking for an employees’ or applicant’s log-in information to a private social media account
  • Compelling an employee or applicant to accept a “friend” request
  • Forcing an employee or applicant to disable his or her account’s privacy setting.

An employer retains the right to monitor and control their own social media accounts.  Of course, employers should be mindful of disciplining employees for posts made on company accounts.  See our earlier post.

Delaware becomes the 22nd state to enact laws prohibiting such activities.  For further information, see the National Law Review article on the new law.

Rhode Island – New Pregnancy Accommodation Law

Effective immediately, Rhode Island employers must accommodate pregnant employees.

The law makes it an unlawful employment practice for an employer to refuse to reasonably accommodate an employee’s – or prospective employee’s – limitations related to pregnancy, childbirth, or a related condition.  A “related condition” is defined to include, but is not limited to, expressing breast milk for a nursing child.  The new law also makes it an unlawful employment practice for an employer to require an employee to take a leave of absence if another reasonable accommodation can be provided, or to deny employment opportunities based on the employer’s refusal to reasonably accommodate pregnancy, childbirth, or a related medical condition.  The new law also obligates employers to provide written notice of these rights to new employees at the commencement of their employment, to existing employees within 120 days of June 25, 2015, and to any employee who notifies the employer of her pregnancy within 10 days of such notice.

Rhode Island employers must display the new related poster, available here.

New Minimum Wage for Minnesota

As of August 1, 2015, the minimum wage is $9.00/hour in the state of Minnesota for large employers (any enterprise with an annual gross dollar volume of sales made or business done of $500,000 or more) and $7.25/hour for small employers (any enterprise with an annual gross volume of sales made or business done of less than $500,000).

The Minnesota Department of Labor and Industry published an updated minimum wage poster.  All employers are required to display the new poster.