On June 22, 2016, President Obama signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which amends the Toxic Substances Control Act. The new law mandates the Environmental Protection Agency ("EPA") to evaluate the safety of new and existing chemicals against a new risk- based safety standard and establish clear and enforceable deadlines that ensure both timely review of prioritized chemicals and timely action on identified risks. The most immediate effects will be on the new chemicals review process. The EPA is now required to make an affirmative determination on a new chemical or significant new use of an existing chemical before manufacturing can commence. The  law may be read here: https://www.epa.gov/sites/production/files/ 2016-06/documents/bills- 114hr2576eah.pdf.

National Labor Relations Board – Federal rule

Miller & Anderson, Inc. and Tradesmen International and Sheet Metal Workers International Association, Local Union No. 19, AFL-CIO.  Case 05-RC-079249

On July 11, 2016, the National Labor Relations Board held that proposed bargaining units that combine solely (only employed by one company) and jointly (outsourced workers from a staffing agency) employed workers of a single-user employer must share a community of interest in order for a single unit combining the two to be appropriate. Meaning, for purposes of a combined bargaining unit, temporary workers from a staffing agency could be included with traditional workers if they had an adequate “community of interest.”

Previously, bargaining units needed employer consent to combine solely employed and jointly employed workers into the same bargaining unit.  Now the employer’s consent is not required.  Further, a user company (the company employing temporary workers) will only be obligated to bargain over the jointly- employed workers’ terms and conditions which it possesses the authority to control.

The decision is available here: https://www.nlrb.gov/cases- decisions/board-decisions

Independent Contractors – caselaw developments

In several recent cases, federal courts have addressed whether particular groups of workers should be appropriately classified as employees or independent contractors under the Fair Labor Standards Act (“FLSA”) and through common law tests.

In Keller v. Miri Microsystems LLC, 781 F.3d 799 (6th Cir. 2015), the plaintiff alleged that he was not properly compensated for overtime work as an employee under the FLSA.  On appeal from the district court’s granting of summary judgment for the employer and finding the plaintiff was an independent contractor, the Appellate Court applied the economic reality test used in FLSA cases.  Factors considered include the plaintiff did not have an exclusive working relationship with the employer, and the plaintiff chose to work exclusively for the employer for almost 2 years. Additionally, the Court looked at the amount of time consumed by travel and labor as employer’s de facto control over the plaintiff’s working hours and ability to work for other companies. The Court concluded there were many issues of genuine material fact and reasonable inferences from which a jury could find that the plaintiff was an employee, therefore summary judgment for the employer was inappropriate. The judge noted the FLSA’s definition of “employee” had stretched to cover parties who might not qualify as such under a strict application of traditional agency law principles.

In Gray v. FedEx Ground Package Sys., Inc., 799 F.3d 995, 997 (8th Cir. 2015), FedEx drivers have sued all across the country to prove they are employees, rather than independent contractors, in order to secure benefits such as overtime pay. The District Court of the Eastern District of Missouri had granted summary judgment to the drivers, finding that they were employees rather than independent contractors. The question on appeal was whether a reasonable jury could disagree and conclude that the plaintiffs were independent contractors, and the appellate court found that it could. The court held that there was a genuine dispute as to whether  the plaintiffs were independent contractors or employees, as only two of the eight factors supported a finding that they were employees and the remaining, including control and the right to control, suggested a genuine dispute.

Businesses should keep these issues in mind and reassess, if necessary, employee classifications.  Recent decisions are showing it is not enough to merely classify a worker as an independent contractor and that additional factors must be taken into consideration.

Keller v. Miri Microsystems LLC can be found here: http://www.opn.ca6.uscourts.gov/opinions. pdf/15a0055p-06.pdf.

Gray v. FedEx Ground Package Sys., Inc. can be found here: http://caselaw.findlaw.com/us-8th- circuit/1711506.html

Equal Employment Opportunity Commission – Proposed Rule

On July 13, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) proposed a revision to the Employer Information Report (EEO-1).  The EEO-1 report is required by the EEOC, pursuant to its authority in Title VII of the Civil Rights Act of 1964 (Title VII), and requests submission of information aimed at detecting discriminatory practices. The revised proposal will expand pay data collection from federal contractors and other employers with more than 100 workers to include additional data on pay ranges and hours worked. Additionally the date of the first required employer report will be pushed back to allow for the use of workers’ W-2 reports, which are calculated based on the calendar year.

The EEOC stated collecting pay data is a step forward in addressing discriminatory pay practices and will assist employers in evaluating pay practices to prevent pay discrimination and strengthen enforcement of anti-discrimination laws.  Critics of the proposed rule state the EEOC underestimates the hurdles employers would face in implementing the rule and that any compensation data collected would not be enough for a meaningful analysis.

The proposal would change effective the 2017 reporting cycle and they would need to add the additional information by March 31, 2018. The comment period for the new revisions closes August 15, 2016.