Tag Archives: labor & employment

Part C of the “ABC” Independent Contractor Test Does Not Require an Independent Business

Our colleagues , at Epstein Becker Green, have a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the health care industry: “New Jersey’s Appellate Division Finds Part C of the “ABC” Independent Contractor Test Does Not Require an Independent Business

Following is an excerpt:

In a potentially significant decision following the New Jersey Supreme Court’s ruling in Hargrove v. Sleepy’s, LLC, 220 N.J. 289 (2015), a New Jersey appellate panel held, in Garden State Fireworks, Inc. v. New Jersey Department of Labor and Workforce Development (“Sleepy’s”), Docket No. A-1581-15T2, 2017 N.J. Super. Unpub. LEXIS 2468 (App. Div. Sept. 29, 2017), that part C of the “ABC” test does not require an individual to operate an independent business engaged in the same services as that provided to the putative employer to be considered an independent contractor. Rather, the key inquiry for part C of the “ABC” test is whether the worker will “join the ranks of the unemployed” when the business relationship ends. …

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Take 5 Newsletter: No Tricks, We Treat You to Five Developments in the Intersection of Health Care and Employment Law

Almost ten months into the Trump Administration, the executive and legislative branches have been preoccupied with attempting to repeal and replace the Affordable Care Act (“ACA”) – but each attempt has thus far proved fruitless.  While the debate rages over the continued viability of the ACA, as we stated in our previous Take 5, employers should remember that obligations to comply with Section 1557 (the non-discrimination provision of the ACA) and the final rule implementing that provision remain.  But there have been developments regarding which characteristics are protected by Section 1557.  In this Take 5, we explore whether Section 1557 continues to cover gender identity and transition services.

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Attorney General Reverses Obama-Era Protection of Transgender Employees

In an October 4, 2017 letter to all United States attorneys and heads of federal agencies, Attorney General Jeff Sessions announced that the Department of Justice (“DOJ”) will no longer interpret Title VII of the Civil Rights Act of 1964 (“Title VII”) to provide employment protections to transgender individuals.  This statement reversed former Attorney General Eric Holder’s position, who previously concluded that Title VII does protect transgender individuals from employment discrimination.

Although this letter from the Attorney General is a departure from the DOJ’s prior position, this announcement is not surprising.  Earlier this year the DOJ filed a brief, without being asked by the court, in a case before the Second Circuit Court of Appeals in Zarda v. Altitude Express.  The DOJ argued that Title VII does not prohibit employment discrimination on the basis of sexual orientation.  In that same matter, the current Equal Employment Opportunity Commission’s (“EEOC”) argued that Title VII does prohibit discrimination on the basis of sexual orientation.  This case has not yet been decided, but Judge Rosemary Parker of the Second Circuit noted during oral arguments that “[i]t’s a little bit awkward for us to have the federal government on both sides of the case.”

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Trump Administration Limits Affordable Care Act’s Contraceptive Coverage Mandate

On Friday October 6, 2017, the Trump administration released two interim final rules expanding the exemptions allowed under the Patient Protection and Affordable Care Act’s (the “ACA’s”) contraceptive coverage mandate. Under the ACA, employer group health plans generally are required to cover contraceptives, sterilization, and related patient education and counseling, with exemptions provided for religious houses of worship. The exemption was expanded by the Department of Health and Human Services (HHS) as a result of the Supreme Court’s decision in Burwell v. Hobby Lobby 34 S. Ct. 2751 (2014), which held health plans of closely held for-profit corporations are not required to cover contraceptives if doing so would contradict the owner’s religious beliefs under the Religious Freedom Restoration Act.

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Plan Sponsors: Potential Targets for IRS Compliance Examinations

Our colleague Sharon L. Lippett, at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our health care and life sciences employers: “Plan Sponsors: Potential Targets for IRS Compliance Examinations.”

Following is an excerpt:

The IRS recently released the Tax Exempt and Government Entities FY 2018 Work Plan (the “2018 Work Plan”) which provides helpful information for sponsors of tax-qualified retirement plans about the focus of the IRS’ 2018 compliance efforts for employee benefit plan.  While the 2018 Work Plan is a high-level summary, it does address IRS compliance strategies for 2018 and should assist plan sponsors in administering their retirement plans.…

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Another 24-Hour Wage Hour Decision for the Home Health Care Industry – Employment Law This Week

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Employment Law This Week (Episode 88: Week of September 25, 2017) has released bonus footage of its interview with Michael McGahan, a Member of the Firm at Epstein Becker Green.

As Mike discusses, New York home care agencies typically pay sleep-in home health aides for 13 hours per day, relying on a 2010 opinion from the state Department of Labor. Two home health attendants who claimed they did not “live in” the homes of their clients filed suit against their employers, claiming that their patients’ need for 24-hour supervision required them to be working or on call for all 24 hours. They argued that they should have been paid the minimum wage for each hour. A state appellate court ruled in favor of the plaintiffs, finding that the 13-hour rule violates the state’s minimum wage law. The Department of Health is currently reviewing the decision.

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Appellate Division Second Department Declines to Defer to NYSDOL Opinion Letter and Rules That Home Healthcare Attendants May Be Entitled to Wages for Hours Worked In Excess of 13 Hours a Day

In New York, State Department of Labor (“DOL”) regulations provide that the minimum wage must be paid for each hour an employee is “required to be available for work at a place prescribed by the employer.” (12 NYCRR § 142-2.1(b)) (“Wage Order”). Exception is made for a “residential employee,” defined as one who lives on the premises of the employer, during his or her sleeping hours or any time he or she is free to leave the place of employment. Id.

On March 1, 2010, the DOL issued an Opinion Letter advising that sleep-in employees, whether or not they are residential employees, who work a twenty-four hour shift must be paid not less than for thirteen hours for a twenty-four hour period provided they are afforded at least eight hours for sleep, actually received at least five hours of uninterrupted sleep and are afforded at least three hours for meals. (NYS St. Dept. of Labor OP. No-09-0169 at 4 (March 11, 2010)). The Opinion Letter was a reiteration of the DOL’s long standing interpretation of the Wage Order as applied to home health care attendants, and agencies assigning attendants to twenty-four hour shifts have long followed it in paying the attendants for this shift.

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Federal Laws Do Not Preempt Connecticut Law Providing Employment Protections to Medical Marijuana Users

Connecticut employees using medical marijuana for certain debilitating medical conditions as allowed under Connecticut law for “qualified users” are protected under state law from being fired or refused employment based solely on their marijuana use. Employers who violate those protections risk being sued for discrimination, according to a recent federal district court decision.

Background

In Noffsinger v. SSC Niantic Operation Company (3:16-cv-01938; D. Conn. Aug. 8, 2017), the federal district court ruled that “qualified users” are protected from criminal prosecution and are not subject to penalty, sanction or being denied any right or privilege under federal laws, such as the Controlled Substances Act (CSA), the Americans with Disabilities Act (ADA) and the Food, Drug and Cosmetic Act (FDCA), because the federal laws do not preempt Connecticut’s Palliative Use of Marijuana Act (PUMA).

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NYC OATH Decision Finds for Medical Marijuana User

As we have previously reported, there has been an uptick of new employment decisions finding in favor of registered medical marijuana users.  Somewhat under the radar, New York City’s Office of Administrative Trials & Hearings (“OATH”) also has issued a report and recommendation to reverse an adverse action taken by a New York City agency against a lawful medical marijuana user.

In Taxi & Limousine Comm’n v. W.R., OATH Index. No. 2503/17 (July 14, 2017), adopted, Comm’r Dec. (July 25, 2017), the Taxi & Limousine Commission (“TLC”) revoked the respondent taxi driver’s TLC Driver License because the driver tested positive for marijuana.  OATH reversed, finding that revocation solely because of the driver’s status as a certified medical marijuana patient would violate New York city and state laws.

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Second Circuit Adopts “Motivating Factor” Causation Standard for FMLA Retaliation Claims

The U.S. Court of Appeals for the Second Circuit recently clarified that the “motivating factor” standard of causation applies to Family and Medical Leave Act (FMLA) retaliation claims, instead of the “but for” causation standard applied in Title VII and ADEA retaliation cases. The “but for” standard is more onerous for the plaintiff, who must demonstrate that discrimination or retaliation was the determining factor for the adverse employment action, not just one reason among others. The less burdensome “motivating factor” causation standard requires the plaintiff to show only that the action was motivated at least in part by discriminatory or retaliatory animus.  In Woods v. START Treatment & Recovery Ctrs., Inc., the Second Circuit vacated and remanded the jury verdict where the district court incorrectly instructed the jury to apply the “but for” causation standard to Plaintiff’s FMLA retaliation claims.  Specifically, the court held that the “motivating factor” standard applies to FMLA retaliation claims actionable under 29 U.S.C. § 2615(a)(1), which prohibits “any employer to interfere with, retrain, or deny the exercise of or the attempt to exercise” rights under the FMLA.

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