Following its announcement on Friday 20th March to provide much-needed assistance to UK employers and employees in the short-term through the Coronavirus Job Retention Scheme, and intense pressure to provide similar assistance to self-employed workers, the UK Government has released details of a similar scheme intended to support this group: the Self-Employment Income Support Scheme (the “SEISS”).

The SEISS will support self-employed individuals (including consultants and members of partnerships) whose income has been negatively impacted by COVID-19, but is unlikely to apply to consultants who provide their services through a personal services company, given the criteria set out below.  Further, the Chancellor indicated that tax payable by the self-employed would, in future, need to be brought in line with that paid by employees.


Continue Reading U.K. Government Announces Self-Employment Income Support Scheme

As the COVID-19 public health crisis continues, businesses are dealing with unprecedented disruptions to operations and workforce stability. Most employers undoubtedly want to assist their employees during this uncertain time, but they are struggling to balance the cost of maintaining their workforce with shrinking profits. The frequent result of such a balancing act is a mass layoff. While such a reduction in workforce may be inevitable, below are options that employers can consider to try to avoid that outcome. For all of these alternatives, employers should be careful to apply any changes consistently across the workforce to avoid claims of inequity or discrimination.

Continue Reading Ten Ways to Avoid Layoffs During the COVID-19 Pandemic

In view of the coronavirus crisis, employers are faced with numerous questions of employment law, ranging from the question of compulsory employment and possible release of employees in the event of illness or closure of the business, through remuneration issues in the event of a lack of childcare, to the currently extended options for receiving

  • The speed and severity of the current crisis means UK employers face very difficult and pressing decisions.
  • Some intermediate steps can be taken to preserve workforces for a period and avoid immediate redundancies.
  • Some form of individual or even collective consultation with employees or their representatives may be necessary. This can be used as an opportunity to seek creative, collaborative solutions to preserve jobs in the short-term.
  • We set out a checklist of potential measures below.


Continue Reading Five Ways to Avoid Redundancies During The Coronavirus Crisis

In a positive development for businesses, the National Labor Relations Board (NLRB) has published a final rule setting a new, stricter standard for determining joint employer status under the National Labor Relations Act (NLRA). The new rule, which takes effect on April 27, 2020, comes on the heels of a recent rule published by the Department of Labor narrowing the scope of joint employment under the Fair Labor Standards Act.

The new NLRB rule specifies that a business will be deemed a joint employer of another entity’s employees only if the business has “substantial direct and immediate control” over one or more essential terms of employment. Essential terms of employment are wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction.


Continue Reading NLRB Issues Final “Joint-Employer” Rule

The U.S. Department of Labor (“DOL”) has published a final rule, which takes effect on March 16, 2020, outlining the new four-factor approach DOL will use to determine whether, under the Fair Labor Standards Act (“FLSA”), a business is a “joint employer” of another company’s employees and thus jointly and severally liable for wage and hour obligations.  The new rule comes as good news for employers because it establishes a concrete and narrow standard for determining joint employer status and is expected to provide clearer guidance to federal courts making joint employer determinations.

The final rule represents the first time in 60 years that DOL has issued a joint employer rule, although over the decades it has issued guidance both expanding and contracting the scope of the definition and potential liability.  Furthermore, the rule is consistent with a series of actions that DOL, under the Trump administration, has taken to rescind the previously broader definition of “joint employer” under the Obama administration (including its June 7, 2017 withdrawal of employee-friendly Administrator’s Interpretation guidance documents from 2015 and 2016).


Continue Reading DOL Issues Final “Joint Employer” Rule

Recently enacted California Assembly Bill 5 (“AB-5”) is a game changer for businesses that use independent contractors in California — and a warning shot for employers nationwide.  Subject to exemptions for certain occupations and professions, AB-5 imposes a strict “ABC” test that appears to put a thumb on the scale of classifying workers as employees rather than independent contractors.

The ABC test was adopted last year by the California Supreme Court in its Dynamex decision to determine classification of workers for purposes of the state’s Industrial Welfare Commission Wage Orders.  For 20 years before Dynamex, worker classification was governed by the more relaxed “Borello” multi-factor test, which focuses on the hirer’s right to control an individual’s work and other secondary factors.  AB-5 now makes the ABC test the default standard for determining worker classification — not just under the Wage Orders, but also for all California Labor Code, unemployment insurance, and workers’ compensation claims.

As a result of the passage of AB-5, companies that hire consultants or contractors based in California should take a hard look at those relationships and determine whether they need to reclassify any such individuals as employees.  For other companies, this legislation should be monitored as the potential tip of an iceberg of a trend in many states, and potentially nationwide, toward imposing additional hurdles in classifying workers as independent contractors.


Continue Reading Hiring Employees vs. Independent Contractors: Navigating Classification Issues in a Drastically Altered California Legislative Landscape

The U.S. Department of Labor (DOL) has announced a final rule that will increase access to overtime pay under the Fair Labor Standards Act (FLSA) for approximately 1.3 million workers.  The final rule, which comes six months after DOL published a proposed rule in March, is the latest development in a years-long process by DOL, spanning the Obama Administration and the Trump Administration, to modify FLSA overtime regulations.  The new rule takes effect on January 1, 2020, giving employers just a narrow window to assess the rule’s impact on their operations.  The final rule is available here.  DOL has also published a fact sheet that provides an overview of the final rule, available here.

Continue Reading DOL Publishes Final Rule Expanding Overtime Protections