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Do You Classify As A Joint Employer? Not Knowing Can Lead To Serious Implications

A recent development by the National Labor Relations Board (NLRB) is reshaping the responsibilities and liabilities of businesses. The new joint employer rule, effective December 26, 2023, introduces significant changes to the criteria for determining joint employer status under the National Labor Relations Act (NLRA). 

While there isn’t one sole definition of joint employment, there are in fact multiple ways that it is determined. Overall, it relates to situations in which more than one business or entity shares control or supervision over an employee’s activities, making all involved liable for any circumstances surrounding unfair labor practices, legal compliance and other potential responsibilities. 

Notably, the new rule emphasizes that even indirect control or authority over employment terms can establish joint employer status, diverging from the previous focus on direct and immediate control. 

For example, if an employer outsources an IT company to regularly assist with technology issues and provides directions on how the IT company’s employees support the business, they could be considered a joint employer despite not directly employing the IT workers. 

Being recognized as a joint employer carries significant implications for businesses. These implications extend beyond NLRA protections, with courts potentially imposing liability for wage/hour violations, discrimination, or harassment claims.

In light of the NLRB’s new joint employer rule, businesses should review their relationships with vendors, independent contractors, and other third parties, and adapt accordingly to this new standard.


Understanding how you classify can be difficult. If you have questions on how to assess your professional partnerships and navigate potential joint employer status, I’m happy to help. Please contact me at edgar@officiumdc.com or schedule a time to talk here.

ICYMI: Sustainable Earth Eating Feature

Edgar Ndjatou, President of Sustainable Earth Eating recognized consumer change in Food is Climate newsletter today, “There has definitely been …change by individuals in their diets to reduce meat as more studies show larger impact from reducing livestock production equals larger impacts in greenhouse gas reduction.”

Ndjatou, who is also head of Workplace Fairness, continued: “The hope is that as more people make these individual decisions, it will start to have a bigger impact on the global market for livestock agriculture.”

Ndjatou, who helped SEE’s launch in 2021, salutes its mission to address climate change, saying “but it requires individual and collaborative work,” cited an EcoWatch study that said replacing 50% of meat and dairy with plant-based alternatives could reduce agricultural greenhouse gas emissions by 31% by 2050.*

The SEE President cited actions such as:

  • Educating different populations on how to prepare meals that do not require meat but still provide the same nutrients.
  • Non-profit alignment with businesses bringing to market food products that use less or no meat or otherwise promote a reduced meat diet.
  • Power of Youth in Climate Change:  it is always a good strategy to bring new ideas to youth because they are naturally more curious and receptive to new ways of thinking. …they will soon be the stewards of our planet and will have to make important decisions on how to best deal with climate change policy. This will include examining how diets affect climate change.
  • Cited study: Replacing 50% of the chicken, beef, pork, and milk products consumed by humans with plant-based alternatives could reduce agricultural greenhouse gas emissions by 31% by 2050 as compared to 2020 levels, according to a study reported in EcoWatch.

To see the full interview, please click here.

Support Avant Bard’s 8th Annual Scripts in Play Festival

The Avant Bard’s 8th Annual Scripts in Play Festival hosted by the Avant Bard Theatre Company,will begin on January 19th and run through February 4th. As usual, we will have talk backs with the playwright, actors, directors and dramaturg after each reading. Wine and cheese will be served. Last year was our most successful festival yet, and many of the readings “sold out.” As President of the Board, I invite you to join us for this exciting event and ask you to please consider becoming a sponsor. This is a FREE event to all and will be taking place at the Museum of Contemporary in Arlington and the Mason Exhibitions Art Gallery also in Arlington. We are really trying to lift up our work as an Arlington Theatre Company.

Here is information on how to become a sponsor. Read about the original plays we plan to showcase below.

Tofana
Julia Marks (local playwright)

In 17th century Italy, women had three options: get married, join a convent, or become a prostitute. Unless, of course, you consider the fourth option: become a widow. Giulia Tofana, hand-in-hand with her mother, daughter, and a vast web of women, created an untraceable poison disguised as makeup. Aqua Tofana was behind the murder of 600 men…and the agency of 600 women. In a world without choice, how far will women go to help each other build their collective power? Tofana explores women’s anger, their fear, and their desire to keep loving. Tofana tells the true story of Renaissance women who attempted to have a voice in their own story, and suffered the consequences. Although they lived in a period of great knowledge, there are very few extant texts from female writers from that time, just as there are very few dramatic texts from women from before the mid-20th century. We know Giulia and her family of poisoners existed– but all records of her come from the hands of men. Her life comes to us colored by myth, and we are left to guess at the truth of it. How do we engage with characters knowing their writers were (perhaps unconsciously) prejudiced against them? What is our responsibility to carry their stories forward? And how can we ever hope to know a true story?

Historic Doubts
Luke Sorge (local playwright )

A century before the Shakespeare authorship debate, a young Lutheran pastor publishes a satirical book comparing the Bard’s authenticity to Jesus Christ’s divinity. With the help of renowned actress Charlotte Cushman, he overcomes his writer’s block and believes he’s ended atheistic arguments once and for all. But when the book is taken literally, his ensuing crisis of confidence leads to a crisis of faith… and a reckoning with the true meaning of Shakespeare. Historic Doubts is not only based on true events, featuring real historical figures, but the story also grapples with arguably the two most influential texts in human history: the Bible and Shakespeare’s works. The enduring impact of the words themselves are much more interesting than who wrote them. In this way, Historic Doubts is absolutely in conversation — at one point, quite literally — with time-tested classics.

Walter Mercado presents: a queer Puerto Rican (not just) Christmxs Carol
Jayne (JC) Deely (NYC playwright )

We all need a little help sometimes. Identity is confusing. Dating is HARD. Some of us go to therapy. And some of us – wait until it gets bad enough that our dead abuela (who’s lookin HOT, btw) sends three Puerto Rican ancestors/icons our way on Christmas Eve to get us back on track by taking us on a tour of our past, present, and future. It was just supposed to be three dates, but Walter has other plans for Zee. “Walter Mercado presents: a queer Puerto Rican (not just) Christmas Carol” is a queer subversion of the classic ‘Christmas Carol’ narrative, a refreshing holiday story about Puerto Rico, progress, gender, and accepting a helping hand from some unexpected ancestors. In subverting the classic literary narrative of Dickens’ Christmas Carol to tell the story of a Puerto Rican nonbinary protagonist and the Puerto Rican ‘ancestors’ who guide them, we are claiming a place within the theatre for a new type of classic, one that diverges from the traditional, largely white, cis canon, especially when it comes to what we expect from a holiday show. Step aside, Scrooge?

School-Related Leave: What Employers Need to Know

Parental leave has long been a topic at the forefront of labor rights and employment law. As workers’ rights expand, calls to action have grown louder to offer leave for a variety of situations experienced by caregivers and workers with children. 

This type of coverage is uncommon, with only California, Illinois, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Rhode Island, Vermont, and Washington, D.C. requiring employers to provide time off for parents to attend their children’s school activities. While most of these jurisdictions allow school-related leave to be unpaid, some permit employees to use their paid vacation days or other paid time off for this purpose.

The types of activities covered by these laws may include disciplinary meetings, classroom volunteering, parent-teacher conferences, and special education meetings for children with individualized education programs. Each jurisdiction has its own rules and requirements. For example, Illinois provides eight hours of unpaid leave per school year for school-related activities, while California grants 40 hours of unpaid leave.

It’s crucial for employers to be aware of the laws in all the states or jurisdictions where they operate, as these laws may vary significantly, and failure to comply with these regulations can result in legal issues. Employers must also consider the definition of “parent” and whether guardians, stepparents, or grandparents are covered by these laws.

Employers who operate in multiple jurisdictions must decide whether to adopt specific state-specific policies where there is a law in effect or create one company wide policy that uses the most generous laws in the country as a foundation. Having one policy for all employees can streamline administrative processes and ensure compliance in all jurisdictions where the employer employs individuals.

Adopting school-related leave policies that allow parents and caregivers the ability to maintain their responsibilities at both work and home without negative repercussions ultimately builds trust, loyalty and retention – All of which are crucial for cultivating a successful workplace.

If you have questions about your state’s laws on school-related leave or would like assistance in developing a policy for your workplace, please contact me at edgar@officiumdc.com. If you’re interested in additional information about Officium LLC and the HR, mediation and business solutions services we offer, please click here.

SCOTUS Ruling Sets New Standard for Religious Accommodations at Work

Title VII of the Civil Rights Act has long mandated that private employers with 15 or more employees must provide reasonable accommodations for sincerely-held religious observances that conflict with work requirements, except in cases of undue hardship. However, the definition of “undue hardship” has lacked clarity and consistency in court interpretations over the years.

To address this, a unanimous SCOTUS decision on June 29th delivered a significant ruling in Groff v. DeJoy, reshaping the landscape of religious accommodations in the workplace. 

Employers are now required to provide religious accommodations to employees unless they can demonstrate a substantial burden. This burden must demonstrate that providing a religious accommodation would result in “substantial increased costs in relation to the conduct of its particular business” in order to deny such accommodation.

Similar to the Americans with Disabilities Act, this decision emphasizes that other employees’ inconvenience is not the primary factor. Instead, employers must assess the costs of providing accommodation within the context of their business, considering factors such as the size of the employer and available resources. This sets a higher bar for employers seeking to claim an undue hardship.

As a result of this decision, employers must review and, if necessary, update their current practices concerning religious accommodations to consider this new and more stringent standard. 

If you have questions about the new standard and ensuring compliance, I’m happy to help. Please contact me at edgar@officiumdc.com.

If you’re interested in additional information about Officium LLC and the HR, mediation and business solutions services we offer, please click here.

Hey Employers – It Might Be Time to Update Your Handbook

The National Labor Relations Board (NLRB) recently issued an update to the standard for assessing whether work rules violate the National Labor Relations Act (NLRA). 

The previous standard designed by the NLRB categorized which work rules are lawful to maintain. The policy made no exception for statements that would be protected by the NLRA, which would protect false or negative statements relating to the right to organize or to concerted protest of workplace issues.

Under the new standard, the NLRB’s General Counsel has to prove that a challenged rule has a reasonable tendency to restrict employees from exercising their rights. If an employee could reasonably interpret the rule to have a coercive meaning, and the General Counsel agrees, then the rule is presumptively unlawful. However, the employer may rebut that decision by proving that the rule advances a legitimate and substantial business interest that can’t be reached with a more limited rule. If the employer proves its defense, then the rule will be held to be lawful.

It may be difficult for businesses to identify unlawful or potentially coercive workplace rules within their policies but here’s an example:

Let’s say a business has a social media policy that prevents employees from sharing confidential information about the company, to use good judgment, and to conduct themselves in a manner that is reflective of being a representative of the company on their personal accounts. While this policy in general is lawful, it does not make any exception for statements that would be protected by the NLRA. Employees are allowed to engage in concerted activity which include, but is not limited to, organizing a union or protesting workplace issues. 

Moving forward, under the new standard, employment policies must make that clear. Taking the same policy above, it should state instead: 

“Company XYZ’s social media policy prevents employees from sharing confidential information about the company, to use good judgment, and to conduct themselves in a manner that is reflective of being a representative of the company on their personal accounts. This policy does not prevent employees from engaging in concerted activities relating to their wages, hours or working conditions, or any other conduct protected by Section 7 of the National Labor Relations Act (NLRA)”.

Employers should review their handbooks and policies to ensure that their workplace rules can’t be reasonably interpreted as restricting employees’ protected concerted activity under the NLRA. This review should include whether or not an employer can articulate a legitimate and substantial business interest for workplace rules.

If you need assistance ensuring that your handbooks and policies are compliant to the updated NLRB and NLRA standard, I’m happy to help. Please contact me at edgar@officiumdc.com. If you’re interested in additional information about Officium LLC and the HR, mediation and business solutions services we offer, please click here.

New Regulations for Federal Contractors

The federal government has recently issued two laws that specifically impact federal contractors. Here’s what you need to know:

The Fair Chance Act for federal government contractors went into effect on October 2, 2023, which limits federal agencies from asking about a job applicant’s criminal history until a conditional offer has been made. While these are guidelines that have been loosely implemented through Ban the Box initiatives, the regulation cements the ability for individuals with records to compete fairly for employment. 

Exceptions to the law may depend on the type of position an individual is applying for. These types of roles include law enforcement, nation security duties, jobs with access to classified information, and roles that legally require disclosure on criminal backgrounds. Agencies have the ability to request exceptions from the Office of Personnel Management, and applicants can still be rejected based on criminal history after being assessed on other factors and a conditional offer has been made. Click here for more information.

Another regulation affecting federal contractors is the government’s recently issued No TikTok on Government Devices Act banning the use of TikTok or any successor app developed by ByteDance Limited on all government-owned or managed technical devices, including personal devices used for federal contract work. This rule aims to prevent possible national security implications as a result of massive data gathering.

This rule applies to solicitations and awards issued on or after June 2, 2023. Click here to learn more.

Learn more about the rights and classification of federal employees here.

If you have questions about the new regulations affecting federal contractors and compliance, I’m happy to help. Please contact me at edgar@officiumdc.com.
If you’re interested in additional information about Officium LLC and the HR, mediation and business solutions services we offer, please click here.

E-Verify Updates to Enhance Hiring Efficiency

An updated version of E-Verify will fundamentally transform the way employment eligibility verification is conducted. The update will be most useful to businesses who are still using paper I-9s and manual processes. 

Scheduled to release in 2024, E-Verify NextGen will integrate the Form I-9 process with the government’s electronic employment verification system, lifting much of the process from HR and new hires. The new technology enables new hires to electronically enter all personal information to determine eligibility and allows employers to examine and verify the documents remotely. This leaves less room for error for both the worker and the hiring team, and the employee will be able to carry the eligibility verification with them to future employers.

Employer use of the new system is voluntary excluding certain federal contractors and subcontractors in certain states

If you have questions about the upcoming E-Verify changes or how to update your policies, procedures and handbooks accordingly, I’m happy to help. Please contact me at edgar@officiumdc.com. If you’re interested in additional information about Officium LLC and the HR, mediation and business solutions services we offer, please click here.