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One positive effect of reversed 'joint employer' standard

In one of our latest posts, we reported on three recent decisions by the National Labor Relations Board that analysts describe as notably pro-business. In broad terms, the board was able to leverage a brief 3-2 Republican majority to reverse several rules that business advocates found tilted the scales in favor of worker unionization.

In this post, we intend to look more closely at the decision that rolled back the 2015 NLRB established definition of what constitutes a joint employer. Previously the board determined that the joint employer designation could apply in labor disputes, even when one organization exercised only indirect control over another. Critics observed that this broad standard meant it was easier for contractors and employees in franchised businesses to organize.

Reversal provides more business protection

The specific rule in question is the Browning-Ferris Industries decision. In it, BFI was found to be a joint employer with another company it had hired to provide contract workers for various BFI functions. Despite the contractor relationship between the two firms, when workers sought to unionize, the board declared them joint employers based on indirect control.

At the time of the decision, the board said it was needed to "keep pace with changes in the workplace and economic circumstances" as reflected in an economy where gig and contract work is on the rise. However, observers noted the ruling could spark labor relations issues where none had existed before and increase risks for companies that rely on third party staffing or contractors for their human resource needs. The NLRB ruling last month reinstated the direct control test; providing what some call more protection to businesses.

To be clear, the NLRB did not jettison the joint employer standard altogether. It merely rolled the definition back to state that such conclusions depend on applying the test of direct control by the entities involved. Employee disputes will still occur and where counsel or litigation is required, the Kisner Law Firm stands ready to serve.

NLRB closes out year with major pro-business changes

In the waning days of 2017, the National Labor Relations Board delivered some notable pro-business decisions. Earlier this month, the panel reversed three Obama-era rules on labor over which business owners had bridled. These included:

  • A retrenchment on how a joint-employer is defined
  • Easing the standard by which company policies might be deemed to violate worker collective bargaining rights

The board also rolled back a rule that made it easier for subsets of employees within a company to unionize. Employers had long complained that the so-called Specialty Healthcare rule established during the Obama administration set a standard for challenging such micro-bargaining units that was nearly impossible to meet.

How this happened

Analysts are in general agreement that these reversals are the direct result of the fact that for the first time in many years, the NLRB enjoyed a 3-2 Republican majority. All of the recent changes passed along the party line. Observers also note that the flurry of pro-business decisions came as Republican board chairman, Philip Miscimarra, marked the end of his term. He has not been replaced, and the board now features a 2-2 split among its members.

What it means

The decisions are widely hailed as positive by business advocates. One official of the U.S. Chamber of Commerce says they reflect a restoration of "common sense and balance to a board that unfairly favored labor unions over the past eight years."

What the implications are for individual businesses in the U.S., and the Pittsburgh area specifically, is something that deserves closer examination. We plan to dive more deeply into each of the actions in subsequent posts.

While such reversals are undoubtedly welcome by many employers, to be sure of compliance with all employment law, a consultation with experienced attorneys such as those at Kisner Law Firm, LLC, is encouraged.

Why are employers investigated by the WHD?

As an employer, you may have all sorts of concerns which arise on a daily basis. For example, you could be worried about company growth or may be having difficulty finding the right employees. However, you may be especially stressed out if you are investigated by the Wage and Hour Division. In Pittsburgh, and in other parts of Pennsylvania, it is vital to realize some of the reasons why employers are investigated by the WHD.

According to the Department of Labor, an employer may be investigated by the Wage and Hour division because an employee filed a complaint. However, there are other factors that can lead to an employer being investigated. Sometimes, the WHD will look into businesses located in a certain location, while others may be investigated as a result of their industry. Usually, the Wage and Hour Division does not reveal why they investigated an employer.

If you have been investigated by the WHD, or if an employee has threatened that they will file a complaint and you are afraid that your business will be investigated, many things may be going through your mind. However, it is vital to try and stay calm during this situation and look for the correct course of action. Moreover, it is essential to avoid investigations altogether by making sure that the workplace is free of wage and hour violations, as well as other violations of employment law.

You should also remember that this write-up is offered for general information and does not represent an alternative to legal help.

What does defamation mean?

Understanding the intricacies of workplace etiquette in Pennsylvania can not only increase your popularity with your employees, it can also keep you out of legal trouble. If your employee has accused someone of defamation, you may be confused about whether or not this is a valid claim. states that actual defamation of character is defined as false information that is either published without consent or made in the form of a derogatory statement. Harm must also be intended by spreading the rumor and the information must not be true, otherwise it does not qualify.

Many employees believe that simply spreading rumors counts as a defamation of character, but this is not true. Rumors can be spread due to misinformation, unhealthy competition or ignorance, but if no harm is intended, this is not considered defamation. Simply damaging a reputation does not count as defamation either, especially if the rumor turns out to be true.

While it can be very difficult for an employee to prove that there was intended harm in a defamation case, controlling the spread of rumors can not only lead to a healthier work environment, but also less chance you will end up facing a lawsuit. You can prevent this by setting a good example and including guidelines in your employee handbook to discourage your employees from spreading any rumors. 

How to handle a breach of contract

Contracts are a vital part of any business negotiation, but what happens when your employee does not honor the terms set within? If you feel that you have had a contract breached in Pennsylvania, you may not know what steps to take next. We at Kisner Law Firm can help you determine if a contract was breached and what you can do about it.

First, it is important for you to decide whether the broken agreement is actually considered a breach of contract. states that verbal communication is much harder to prove than written, so if you are concerned about a negotiation that was made in conversation but is not included in the employee's contract, it will be much more difficult to prove. This is why it is so important to write everything down in the contact when you and your employee agree to the terms.

You may want to attempt to reconcile the agreement with the other party. If your employee is not holding up his or her end of the deal, bring up the topic and talk about what needs to happen. Sometimes, the issue is simply a matter of not understanding the wording of the document, in which case you need to be sure that everything is clear to avoid this problem in the future.  Make sure you document the conversation in writing as a follow up.

Early action is key to prevent a full on breach and additional issues.  Before you take any action you should consult your attorney, many contracts provide time limits for notice and cure of a perceived breach and if you don't follow your contract you may limit your future remedies.

If you need assistance understanding an employment contract or drafting a business agreement contact our attorneys at Kisner Law Firm.

What you should include in your employee handbook

When you are developing your employee handbook in Pennsylvnia, it can be difficult to know what guidelines need to be included and which to leave out. While many business owners are savvy when it comes to most matters concerning their company, human resources can be a confusing topic that requires additional help. We at Kisner Law Firm work to not only help you during employee discrepancies, but also in the formation of your initial rules and guidelines. states that it is important to make sure that the necessary details required by law are covered. You can search the Department of Labor’s website to be sure you have included your stance on all issues, but some of the most common topics to cover include hourly-pay, time off, sick leave, vacation pay and overtime. You can also detail your union relations and outline any policies concerning that topic.


Next, consider explaining the company’s discrimination and equal employment policies. This can include your stances during hiring as well as when considering promotions. Worker’s compensation policies should also be included, as well as rules regarding military leave, maternity leave and disabilities.


There are also several preferences that can be detailed in the handbook, including the dress code policy, cell phone usage, computer use during work time and after hours, and employee behavior policies. You can also detail the benefits that will be offered to employees and how early time off needs to be requested. To learn more about what should be included in your employee handbook, visit our web page.

What laws about age discrimination should workplaces know?

Diversity in the workplace is about more than people's educational or cultural backgrounds. It is also about the age of employees. Might a 30-year-old employee have something to offer that a 60-year-old worker doesn't? Could that elder worker be able to teach a younger employee a thing or two?

As a whole, a diverse workplace can be beneficial to a business' bottom line and to the morale of the workers employed there. Respecting diversity is also a legal matter. That respect includes abiding by anti-discrimination laws regarding employees' ages.

But what age discrimination rules do companies need to follow?

Workers who are 40 and older are the protected class in terms of age discrimination lawsuits. Various company process and policies are not allowed to routinely discriminate against older workers, even if such discrimination is not intentional.

These processes include recruitment, hiring, job assignments, benefits, promotions, job loss and compensation. A business will want to work with a human resources professional who can help ensure employment policies and processes don't negatively impact older workers. Otherwise, a company could be sued for age discrimination and have to go through that sometimes lengthy, stressful and expensive legal process. Such lawsuits can be bad for a business' reputation, as well.

If your business employs at least 20 people, you are expected to follow anti-discrimination laws. Still, just because you are accused of discriminating practices doesn't mean you have committed the alleged offenses. There are legal reasons to legally support age-based decisions in the workplace. Your employment defense attorney can evaluate a situation and help defend your best interests.

What if you need to contest a compensation claim?

Pennsylvania employers like you are entitled to contest an employee's claim to unemployment compensation. At Kisner Law Firm, we understand that challenging someone's compensation can be a delicate situation, and we work to provide you with information you can use to handle it as carefully as possible.

The first thing to know is that, generally speaking, you can contest a compensation claim for unemployment if you have reason to believe that the employee in question left the company or were fired due to misconduct. This can include harassment of other workers, poor managerial or work choices, decisions that may have reflected badly on the company or cost them money, and other similar negatives. You can also contest claims made by contract workers, as well.

The tricky part comes in when you consider the overall impact that challenging a compensation claim can have on your workplace. Challenges can be costly and may make your other employees wonder how you're using the company's budget. It can also demoralize other workers and make them feel threatened or underappreciated. This can be dangerous to the health of your working environment, as well as the productivity of your workers.

If this has piqued your interest and you want to learn more about ways you can challenge unemployment compensation claims without damaging your work's ecosystem, look no further than our web page. We'll lay out the facts in an easily digested way, and you can then use them to determine where you stand in your own personal situation.

What commonly causes contract breach accusations?

Employers in Pennsylvania are often put into difficult situations because of their position of power. Unhappy employees will always look to target someone for compensation, which is how some accusations of contract breaches end up getting thrown around.

It's important for employers to understand the terms of their own contracts inside and out in order to defend themselves against accusations. The American Bar Association says that all questions about contracts can be broken down and answered by looking at a few main components. These are:

  • Whether or not a contract was formed, and what the terms are
  • If the contract promises could be enforced and if those enforcements had defenses
  • If a duty of performance arose
  • Whether or not a contract was breached, and what the remedy is

Many claims of contract breaches stem from a fundamental misunderstanding of what was promised in the initial contract. The employee may feel entitled to things that the employer never intended to offer to them, and this can cause a great deal of friction, especially if the employee feels cheated.

Other common causes of contract breach accusations include a perceived lack of proper enforcement of the promises made within the contract. Employees may also feel cheated out of certain promises despite not meeting goals set in the contract either because these performance terms weren't made clear to them, or because of intentional misreading.

In any case, a contract breach accusation can be very serious. Employers who are being pinned with such accusations should swiftly deal with them to avoid damaging their reputation in the business world.

Do nursing mothers get special protections under the FLSA?

As an employer, you've probably gotten quite the education on the Fair Labor Standards Act (FLSA), which sets out all sorts of wage and hour requirements. However, some of the finer points might have been lost on you. After all, you've got a business to run and 20 balls up in the air at any given time. So you may not be aware of some of the laws governing nursing mothers in the workplace.

The FLSA has been around for a while, but it was updated in this particular area by the Patient Protection and Affordable Care Act (a.k.a. Obamacare), so let's take a look at some of the salient points. 

  • You are required to give a nursing mother a break that allows enough time to express milk. You don't have to provide compensation for this break time, but you must give the mother as much break time as she requires to express milk. This holds true for one year after the child is born.
  • You must provide a designated space for the nursing mother to express milk. It cannot be the bathroom and it needs to have a level or privacy that prevents coworkers from seeing or barging in on the mother.

Some states have stricter laws regarding nursing mothers. Some don't set a limit at one year, while others cover more employees than required by the FLSA. If you're an employer with questions about staying compliant with laws like this, it may be in your best interest to get the help of an attorney.

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Gulf Tower
707 Grant St., Suite 2646
Pittsburgh, PA 15219
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Fax: 412-235-6704

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