Four Reasons for Employers to Vote in the Next Presidential Election

Four Reasons for Employers to Vote in the Next Presidential Election
Allison E. Moore

If you are an employer, you should be watching the upcoming election. Keep an eye on these four issues that might hinge on the results:

1. Minimum Wage
It has been more than six years since Congress raised the federal minimum wage, while many states and some cities have taken the situation into their own hands and passed increases.

A growing national desire for a higher minimum wage has undoubtedly influenced the presidential race. A survey conducted in January 2015 showed that 75 percent of the country supports a minimum wage of $12.50 by 2020, including 53 percent of Republicans.1

Democratic candidate Hillary Clinton has proposed a plan to raise the minimum wage to $12 per hour, while Republican candidate Donald Trump believes "a low minimum wage is not a bad thing for the country." 2 Either way, with the cost of living increasing and continued voter support for a higher minimum wage, employers should expect that the minimum wage will eventually rise; the only question is by how much.

2. Paid Family Leave
America now stands as the only developed country that fails to offer statutory paid family and maternity leave. With 83 percent of Americans in favor of increasing paid family and sick leave,3 national yearning for longer paid leave has pushed the issue into the campaign spotlight. In response, Democrats made the first move with their bill,4 the Family and Medical Insurance Leave Act,5 which is designed to finance wages during an employee's currently-allotted 12 weeks of leave from the Treasury, if employees meet certain qualifications.

Shortly after the Democrats presented their bill, the Republicans put forth the Family Friendly and Workplace Flexibility Act of 2015 (FFWFA).6 The FFWFA focuses on offering employees a choice with regard to payment for overtime work. Workers can choose to accept monetary payment of "time-and-a-half" for overtime or accept only straight time payment for overtime hours and save up 30 minutes per overtime hour worked to use as paid time off during a qualified absence.

Regardless of what path, if any, is ultimately chosen to provide paid time off for family and medical reasons, employers should expect lawmakers to feel pressure to act on some form of paid leave. In preparation, employers need to consider solutions for dealing not only with increased employee absences from work, but also with tracking overtime and/or leave in a new way. In addition, employers must consider how any changes may affect compliance with the Fair Labor Standards Act and other state pay laws.

3. Definition of Joint Employer Status
In the United States, 2.87 million people work for staffing services companies.7 Overruling longstanding precedent, the National Labor Relations Board (NLRB) voted 3-2 in August 2015 to change the definition of the joint employer standard, concluding that Browning-Ferris Industries (BFI) was a joint employer with a staffing services company, in a union representation election covering the staffing service company's employees.8 In finding that BFI was a joint employer with the staffing agency, the NLRB relied on BFI’s indirect control and reserved contractual authority over essential terms and conditions of employment for the agency-supplied workers.

The Browning-Ferris decision has already had a significant impact on businesses, because for the first time, the NLRB has considered "indirect control" to be the main factor in determining whether a joint employer relationship existed under the National Labor Relations Act (NLRA). Prior to the NLRB’s decision in Browning-Ferris, two employers were found to be "joint employers" only when the two entities exerted such direct and significant control over the same employees that they shared or co-determined matters governing the essential terms and conditions of employment.9 Relevant factors in making this assessment included the right to hire, terminate, discipline, supervise and direct the employees. In applying this test, administrative agencies and courts generally found that the control exercised by the putative joint employer must be actual, direct and substantial—not simply theoretical, possible, limited or routine.10

In Browning-Ferris, the NLRB refined its standard for determining joint-employer status under the NLRA by rejecting the requirement that the joint employer’s control be direct and immediate and expanding the essential terms and conditions of employment to include, "dictating the number of workers to be supplied; controlling scheduling, seniority, and overtime; and assigning work and determining the manner and method of work performance,"11 requiring a factual inquiry into every case.

Browning-Ferris greatly affects the relationship between staffing services companies and their clients, as now more clients of staffing services' companies may be considered joint employers with providers.

The lasting power, if any, of this groundbreaking decision could hinge on the 2016 election. The NLRB acts as an independent organization but is headed by individuals appointed by the President. As such, Republicans have sworn to overturn Browning-Ferris, and at least one major parent company has already started the process to appeal the decision. However, Democrats are happy to leave the decision as it stands. Regardless, employers will need to revisit and revise their current business practices to reduce the risk of being found a joint employer under the NLRA, though the Board has given little guidance on how to guarantee non-joint status under the new standard.

4. The Time Off to Vote Act
In June 2015, Democrats proposed the Time Off to Vote Act (TOTVA). If passed, the TOTVA would extend the protections and benefits of employees by requiring employers to allow employees two hours of paid leave to facilitate voting on federal election days. The employer may choose which two hours of leave to allow for voting; however, no pay or benefits could be docked for this time.

The purpose of the TOTVA is to make the patchwork of different states' voting laws more consistent. Currently, 24 states grant workers two hours of paid compensation in order to vote; 7 states offer some paid leave to vote but less than two hours of paid leave; and 19 states offer no paid leave to vote.

Republicans have delayed the bill; however, movement out of committee is more likely in the event of a Democratic victory in November. Employers will need to pay special attention to the budgetary and scheduling changes that may be necessary in order to comply with this potential new employee benefit.

Looks like it is time to get out and vote.

Allison E. Moore is an associate at Littler Mendelson PC working as a strategic partner, as well as a legal counselor, for in-house counsel, HR professionals and corporate executives to solve problems in the growing field of labor and employment law. Moore may be contacted at amoore@littler.com and her extended biography is found at www.littler.com/allison-e-moore.

Endnotes
1 NELP Minimum Wage Survery, No.11479, January 2015, Hart Research Associates, at http://www.nelp.org/page/-/rtmw/Minimum-Wage-Poll-Toplines-Jan-2015.pdf?nocdn=1 (last visited Sept. 25, 2016).
2 Via phone on MSNBC's "Morning Joe" in August 2016.
3 Associated Press Poll, February 2016.
4 Technically, Democrats have introduced several bills that would provide some form of paid leave. The first attempt in the most recent session was the announcement of the Federal Employee Paid Parental Leave Act that would extend benefits to new mothers and fathers among the 2 million people on the federal government payroll, including those who adopt or take in a foster child. However, the Family Medical Insurance Leave Act was the Democrats' first attempt to provide paid leave for employees of both public and private employers.
5 The Family and Medical Insurance Leave Act of 2015, S.789 —114th Congress (2015-2016), introduced by Sen. Kirsten Gillibrand (D-NY) on March 18, 2015, summary at: https://www.congress.gov/bill/114th-congress/senate-bill/789 (last visited Sept. 28, 2016).
6 The Family Friendly and Workplace Flexibility Act of 2015, S. 803—114th Congress (2015-2016), introduced by Sen. Kelly Ayotte (R-NH) on March 19, 2015, summary at: https://www.congress.gov/bill/114th-congress/senate-bill/803 (last visited Sept. 26, 2016).
7 Board Issues Decision in Browning-Ferris Industries, Office of Public Affairs for the National Labor Relations Board, August 27, 2015, at https://www.nlrb.gov/news-outreach/news-story/board-issues-decision-browning-ferris-industries (last visited Sept. 26, 2016).
8 BFI Newby Island Recyclery, 362 NLRB No. 186 (Aug. 27, 2015).
9 TLI, Inc., 271 NLRB No. 798, 798 (July 31, 1984).
10 TLI, Inc., 271 NLRB at 798; AM Property Holding Corp., 350 NLRB No. 998, 1001 (Aug. 30, 2007).
11 BFI Newby Island Recyclery, 386 NLRB No. 186, slip op. at 1.
12 The Time Off to Vote Act, H.R. 2887—114th Congress (2015-2016), introduced by Rep. Matt Cartwright (D-PA-17) on June 25, 2015, summary at: https://www.congress.gov/bill/114th-congress/house-bill/2887 (last visited Sept. 28, 2016).

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