In In Re: Enterprise Rent-A-Car Wage & Hour Employment Practices Litigation, 2012 U.S. App. LEXIS 13229 (3d. Cir. June 28, 2012), the Third Circuit Court of Appeals announced a new test for determining whether a joint employer relationship exists under the Fair Labor Standards Act. Now deemed the “Enterprise test,” courts first must consider: (1) the alleged employer’s authority to hire and fire the relevant employees; (2) the alleged employer’s authority to promulgate work rules and assignments and to set the workers’ conditions of employment, including compensation, benefits, and work schedules, including the rate and method of payment; (3) the alleged employer’s involvement in day-to-day employee supervision, including employee discipline; and (4) the alleged employer’s actual control of employee records such as payroll, insurance, or taxes. The court next emphasized that this is not an exhaustive list of the relevant considerations, and thus it cannot be “blindly applied.” Rather, courts next must consider any other indicia of “significant control” over the employee (by the potential joint employer), which it held may be persuasive to a finding of joint employment when incorporated with the other factors. In adopting this flexible four factor test, the court combined the test established in Lewis v. Vollmer of America, No. 05-1632, 2008 WL 355607 (W.D. Pa. Feb. 7, 2008) and Bonnette v. California Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1981), emphasizing that the court must “consider all the relevant evidence, including evidence that does not fall neatly within one of the above factors.”
On May 8, 2017, Georgia Governor Nathan Deal signed into law the Family Care Act, a new statute requiring certain employers to allow their employees to use up to five days of their available paid sick leave to care for immediate family members. This new law takes effect on July 1, 2017.
Rhode Island General Assembly to Consider Lowering Standard for Employees to Bring Retaliation Claims
The Rhode Island General Assembly is considering amending the state’s Fair Employment Practices Act (FEPA) to make it easier for employees to sue their employers for discrimination-based retaliation. Under FEPA, employees can sue their employers if they believe they were retaliated against for complaining of discrimination or for participating in…..
Adverse Employment Action Based on Gender-Related Non-Conforming Behavior and Appearance is Impermissible
Under Title VII, an unlawful employment practice is established when an employee demonstrates that gender is a motivating factor for an adverse employment action. Under that analysis, the 8th U.S. Circuit Court of Appeals has upheld the Title VII claims of a female hotel desk clerk who was fired after a company decision-maker complained that the employee lacked the pretty and “Midwestern girl” look desirable in a front desk employee.