Independent Contractor Test Changed Again by NLRB

Ensuring that an employer has properly designated workers as independent contractors, as opposed to employees, is an important issue. The applicable test and factors to be considered and applied when making this important determination have often changed over time, with yet another significant change being recently adopted by the National Labor Relations Board (NLRB). In a January 25, 2019, decision in SuperShuttle DFW, Inc., the NLRB relaxed the test, making it easier for a worker to qualify as an independent contractor and effectively reversing a more stringent test adopted by the NLRB in 2014.

According to the NRLB, key factors involved in analyzing independent contractor status include:

The Interaction of Unauthorized Absences Under an Attendance Policy and a Reasonable Accommodation Under the ADA

In December of 2018, the 8^th Circuit Court of Appeals addressed the interaction between a reasonable accommodation under the Americans with Disabilities Act (ADA) and a work attendance policy holding that unauthorized absences under an attendance policy can be used to terminate an employee for whom accommodations are being made under the ADA. In Lipp v. Cargill Meat Solutions Corporation, the 8^th Circuit affirmed dismissal of an employee’s lawsuit alleging her employer discriminated against her when it failed to accommodate her need for intermittent absences under the ADA and terminated her employment. In particular, the 8th Circuit held that the employee was not a qualified individual under the ADA because 195 unplanned absences in the course of one year amounted to an inability “to regularly and reliably attend work, an essential function of her job.”

The Exempt Salary Requirement Under the Overtime Rules – The Saga Continues

If you have been following the attempts to change the exempt employee salary rule under the Fair Labor Standards Act (FLSA), you know that it has been a long, involved story that includes a series of court decisions and moves that have changed the trajectory of the story. In other words: a saga. We now have word that the saga is continuing.

The final rule adopted by the U.S. Department of Labor (DOL) in 2016 would have increased the minimum salary level required for employees to qualify for the executive, administrative, and professional exemptions under the FLSA from $455 per week ($23,660 per year) to $913 per week ($47,476 per year). However, a successful suit brought by the U.S. Chamber of Commerce resulted in a permanent injunction blocking the rule. The Trump administration filed an appeal, but then asked for and obtained a stay of the appeal pending further regulatory action in order to propose new rules.

Remember the New Minimum Wage Rules (And Don’t Forget Local Ordinances While You’re At It)

There is never a shortage of changes in employment law.  By now, Minnesota employers should be aware that Minnesota’s minimum-wage rates changed on January 1, 2019.  For 2019, the state’s minimum wage is $9.86 an hour for large employers and $8.04 an hour for smaller employers.  As you may recall, large employers are those with annual gross revenues of $500,000 or more. 

Remember, also, that your Minnesota posting needs to be updated. The revised poster pack can be found online at 

www.dli.mn.gov/sites/default/files/pdf/mn_poster_pack.pdf and printed. For federal government contractors, don’t forget that many of you must now pay a minimum wage of $10.60 (see here). 

A Judge Rules the Affordable Care Act Is Unconstitutional, But Law Remains in Effect for Now

On December 14, 2018, a federal judge for the U.S. District Court for the Northern District of Texas ruled that the Affordable Care Act is invalid. The case before the Court was brought by 20 states, including Texas. The plaintiffs argued that the ACA’s individual coverage mandate was no longer constitutional, because the Tax Cuts and Jobs Act of 2017 removed the tax penalty associated with being uninsured. The plaintiffs claimed that, as a result, the individual mandate could no longer be upheld as a proper exercise of Congress’ taxing power. In addition, the plaintiffs argued that the individual mandate could not be severed from the rest of the law and, therefore, the entire ACA should be held unlawful.

The federal judge, Judge Reed O’Connor, agreed, holding that the individual mandate, “unmoored from a tax,” is unconstitutional. Judge O’Connor further concluded, based on the intent expressed by both the 2010 and 2017 Congresses, that the individual mandate is “essential” to the ACA and, accordingly, is not severable from the ACA’s remaining provisions. “In some ways, the question before the Court involves the intent of both the 2010 and 2017 Congresses,” the judge wrote in the opinion. “The former enacted the ACA. The latter sawed off the last leg it stood on.” The Judge ruled that, without the individual mandate, the remaining provisions of the ACA are invalid.

Avoiding Workplace Holiday Headaches

To make sure that “the most wonderful time of the year” stays that way, here is a quick refresher on how employers can sidestep certain employment law minefields that are common to the holiday season.

Religious Issues

December is home to Hanukah, Christmas, Kwanzaa, and Winter Solstice celebrations, among others. For this reason, a host of religious-related obligations can arise for employers under federal and state laws that prohibit religious discrimination and require reasonable religious accommodations.

St. Paul Joins $15 Minimum Wage Movement

After significant debate and discussion over a period of several months, the St. Paul City Council approved a new wage ordinance this week that will require a $15 minimum wage within the city of St. Paul for covered nonexempt workers. The City Council voted unanimously in favor of the wage change and St. Paul Mayor Melvin Carter signed it into law soon after.  

Covered Employers and Phase-In Requirements

Similar to the Minneapolis $15 minimum wage ordinance, the St. Paul ordinance will phase in the $15 minimum wage increase over time, and the wage requirement will apply to all time worked within the city by a covered employee. All covered employers will have new minimum wage requirements by 2020, but the rate of phased-in increases will depend on the employer’s size. The ordinance distinguishes between “macro,” “large,” “small,” and “micro” businesses based on their number of employees, with different applicable phase-in requirements. Under the ordinance, an employer’s business size is based on the average number of employees it had per week during the previous calendar year. For brand new businesses, the size will be based on the average number of employees per week during the first 90 days after the first person begins working for the business. In addition, in determining an employer’s size, all employees on a full-time, part-time, joint, or temporary basis must be counted whether or not located in St. Paul.