Pittsburgh Employment Law Blog

How to classify independent contractors and employees differently

In Pennsylvania, it's critical for employers to clearly define whether someone who works for them is classified as an independent contractor or an employee. That's because, according to state law, unless an employer proves it otherwise, all individuals who work for a company are perceived to be employees of it.

In the state of Pennsylvania, workers must meet two conditions in order to be classified as an independent contractor. First, the worker is required to not bear any direction or control over his or her own performance of services while under contract. Additionally, the individual must be engaged in working independently for his or her own established occupation, business, trade or profession.

Differences between an employment agency and a staffing agency

Many people make the mistake of using the terms staffing agency and employment agency interchangeably. The phrases actually mean considerably different things, and it is important to be familiar with these differences. There are certain liabilities associated with each of these terms that every person working in the staffing or recruiting industry should be aware of.

While one indicates the placement of candidates in permanent positions, the other connotes temporary employment. According to LaborFinders, the latter — staffing agencies — provide over 2.8 million people with work every day. The following are some of the other important contrasts to consider between these two types of employers.

Frequently asked questions about overtime and work hours

As an employer, it is important to make sure that you are abiding by the fair labor standards act (FLSA) so as to ensure that you will not be subject to any complaints or claims made against your employees in regards to overtime and working hours.

The following blog will answer some of the most commonly asked questions about matters that arise around overtime and working hours.

Watch out for the risk of misclassifying employees

The hiring of independent contractors has many pros and cons that are complex. It is important, however, to make sure that you avoid classifying workers as independent contractors when they are actually full-time employees.

Organizations need to be wary of the recent cracking down on this type of misclassification to avoid getting penalties and driving up legal costs. The following blog lists what the penalties can be if an employer is accused of misclassifying a worker.

A PTO policy could make administration easier, less contentious

It can be a real hassle to keep track of which employees have used how much of their vacation days, floating holidays, personal days, charitable time and sick leave, especially when their days continue to accrue throughout the year. You might invest in some costly software or have routine audits performed, but there could be an easier way. And for once the easier way might also be the better way.

The idea is to put all paid employee leave into one category, paid time off or "PTO." "You're saying to staffers, it's PTO, just take it. If you have a sick kid, need a personal day, you're really stressed out," said a spokesperson for one HR consulting firm.

3 most common forms of FMLA abuse

As an employer, you have likely heard every excuse in the book. Some of them are plausible, and some of them are outright outlandish. When it comes to FMLA, though, many of the reasons given tend towards the latter. It is not uncommon for employees to abuse the privileges afforded by FMLA and then seek retribution when faced with disciplinary action.

Every employer should be aware of the of the various ways in which workers might try to abuse FMLA. If you suspect one of your employees has already done so, consulting with an experienced employment law attorney is the best way to avoid an expensive and inconvenient litigation battle. Following are the three most prevalent forms of FMLA abuse:

2015 FLSA Litigation: On the Rise

During the last 15 years, wage and hour lawsuits filed in federal court have risen over 450%. According to the Judicial Resource Center, 8,781 Fair Labor Standards Act lawsuits were filed in 2015, which is a 7.6 percent increase from 2014. This year has seen new federal labor proposed regulations, the fight for higher minimum wage, an increased scrutiny on independent contractor classification and joint employer status. Experts believe these events, changes and public awareness have contributed to the rising onslaught of wage and hour suits. [1]

[1] http://www.bna.com/uptick-flsa-litigation-n57982064020/

Expansion of the Joint Employer-NLRB Browning-Ferris Decision

At the end of August, the National Labor Relations Board (NLRB) handed down a decision, departing dramatically from past precedent, ruling that companies may be held liable for labor violations conducted by their contractors and subject to joint collective bargaining agreements. This decision held that waste management company, Browning-Ferris Industries, who hired LeadPoint Staffing, to supply employees to a one of its recycling centers, is a joint employer and required to participate in collective bargaining along with LeadPoint.

Zannikos and the Fifth Circuit: Highly Compensated Oil Workers May be Exempt from the FLSA

Over the winter, our firm wrote an article about various FLSA exemptions and used the case of Zannikos v. Oil Inspections to illustrate the application of the highly compensated employee exemption. To summarize, in 2012, Vasilios Zannikos, on behalf of all similarly situated employees, filed suit in the United States District Court for the Southern District of Texas against his employer, Oil Inspections U.S.A. He alleged his employer failed to pay him overtime wages pursuant to the Fair Labor Standards Act. Oil Inspections U.S.A. specializes in loss control operations in connection with oil cargo transfers. Zannikos was employed as a marine superintendent. This job required the Plaintiff to monitor and observe oil transfer operations, ensuring they were performed accurately, legally and safely. Plaintiffs served as quality control by inspecting loading and discharge equipment, identifying problems with equipment, safety or calibration, and then recommending remedies to the customers or Oil Inspections. Oil Inspections responded to this suit by filing for summary judgment, alleging marine superintendents were exempt from the requirements of the FLSA because their some of their duties were administrative and they were highly compensated employees. Both parties moved for summary judgment. On January 30, 2014, the District Court entered an order that Vasilios Zannikos was exempt from the FLSA due to the fact he was highly compensated, however the court did not find marine superintendents to be administrative employees. Both parties filed appeals and the Fifth Circuit Court of Appeals affirmed this ruling. Zannikos v. Oil Inspections (U.S.A.), Inc., 14-20253, 2015 WL 1379882, at *1 (5th Cir. Mar. 27, 2015).

The New Overtime: Proposed Rules from the Department of Labor

On July 6, 2015, the Department of Labor (DOL) proposed a new set of requirements for workers who may receive overtime wages. The proposed rule expands the class of overtime eligible employees. The DOL's proposed rules are in direct response to President Obama's executive request to review and revise the current overtime regulations, which currently prevent certain classes of salaried workers from receiving overtime compensation. Specifically, Obama asked the DOL to reevaluate the salary threshold at which employers are no longer obligated to pay employees overtime.