OFCCP Week In Review: January 28, 2019

• OFCCP Reached Out
• NLRB Returned to Long-Standing Independent Standard
• EEOC Back in Business
• Reminder: Post OSHA Reports February 1st

Thursday, January 24, 2019: OFCCP Reached Out

OFCCP sent out an email to their subscribers entitled, “Do you
have a burning question?” The correspondence highlights
Directive 2019-03, which addresses Opinion Letters and the
OFCCP Help Desk. The details included:

We Value Your Suggestions

We will be regularly monitoring Help Desk inquiries for issues suitable to be turned into anonymous Opinion Letters upon consent of the submitter.  However, in order to ensure these letters are truly responsive to stakeholder questions and concerns, we are inviting direct input from you or your legal counsel.

Please reach out through the Help Desk portal to submit suggestions for issues that you would like to see addressed in specific Opinion Letters.  You may also email OFCCPOpinionLetters@dol.gov or mail your suggestions to the address below.

U.S. Department of Labor
Office of Federal Contract Compliance Programs
ATTN: Division of Policy and Program Development
200 Constitution Avenue, NW
Suite C-3325
Washington, D.C. 20210

Request an Opinion Letter

Friday, January 25, 2019: NLRB Returned to Long-Standing Independent Contractor Standard

The National Labor Relations Board (“NLRB”) returned to its long-standing independent-contractor standard, reaffirming the Board’s adherence to the traditional common-law test.  In doing so, the Board clarified the role entrepreneurial opportunity plays in its determination of independent-contractor status, as the D.C. Circuit has recognized.

The Case

SuperShuttle DFW, Inc., involved shuttle-van-driver franchisees of SuperShuttle at Dallas-Fort Worth Airport. Applying its clarified standard, the Board concluded that the franchisees are not statutory employees under the National Labor Relations Act (the Act), but rather independent contractors excluded from the Act’s coverage.

The Board found that the franchisees’ leasing or ownership of their work vans, their method of compensation, and their nearly unfettered control over their daily work schedules and working conditions provided the franchisees with significant entrepreneurial opportunity for economic gain.  These factors, along with the absence of supervision and the parties’ understanding that the franchisees are independent contractors, resulted in the Board’s finding that the franchisees are not employees under the Act. The decision affirms the Acting Regional Director’s finding that the franchisees are independent contractors.

The Overruled Case

FedEx Home Delivery, a 2014 NLRB decision that modified the applicable test for determining independent-contractor status by severely limiting the significance of a worker’s entrepreneurial opportunity for economic gain.

Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion.  Member Lauren McFerran dissented.

Friday, January 25, 2019: EEOC Back in Business

President Trump signed a Bill, “Further Additional Continuing Appropriations Act, 2019,” putting the lights back on, temporarily, in Government offices. The Bill includes a short-term continuing resolution that provides fiscal year 2019 appropriations through February 15, 2019. On the labor front, this means back to work for the Equal Employment Opportunity Commission (“EEOC”), at least for now. No word yet on what this means for the March 31 due date for EEO-1 reports.

Reminder: Post OSHA Reports February 1st

All employers required to keep Form 300, the Injury and Illness Log, must post Form 300A, the annual summary of job-related injuries and illnesses, in a workplace common area starting
Feb. 1 through April 30. Form 300A reports a business’s total number of fatalities, missed workdays, job transfers or restrictions, and injuries and illnesses as recorded on Form 300. It also includes the number of employees and the hours they worked for the year. If there were no recordable injuries or illnesses, a company must still post the form, with zeroes on the appropriate lines.

Find OSHA Injury and Illness Recordkeeping & Reporting Requirements here.