Bustos Law Firm

BROWNING-FERRIS JOINT EMPLOYER TEST

In Employment on January 10, 2018 at 9:48 AM

In a recent 3-2 vote, the National Labor Relations Board overturned the Browning-Ferris Test, a commonly known test whereby a company and its contractors or franchisees could be deemed a single joint employer, even if the company has not exerted overt control over the workers’ terms and conditions. In the Browning-Ferris case, the board determined that Browning Ferris was a joint employer of recycling workers provided by a staffing agency at a Browning Ferris owned recycling facility. In Browning-Ferris, the board revised the standard to include “indirect control” or the ability to exert such control.

The board’s latest ruling now returns the test back to a “direct and immediate” control standard analysis. Commenting upon their ruling, the board’s majority stated: “[a] finding of joint-employer status shall once again require proof that putative joint employer entities have exercised joint control over essential employment terms (rather than merely having ‘reserved’ the right to exercise control), the control must be ‘direct and immediate’ (rather than indirect), and joint-employer status will not result from control that is ‘limited and routine.’”

The significance of this result is that an employer is less likely to be held liable as a joint employer under the NLRB, because indirect control alone is no longer sufficient to establish liability.  Thus, in the event an entity works with and supervises employees who are construed as part of a collective-bargaining organization, and those employees are employed by another entity, so long as the “non-employer” entity does not exercise “direct and immediate” control over the terms and conditions of the employees of other entity, such as hiring and firing, then the “non-employer” entity is unlikely to be considered a joint employer for purposes of liability under the National Labor Relations Act.

This standard is similar to standards for determining joint-employer liability under the Fair Labor Standards Act, as demonstrated in the Tenth Circuit, “(1) whether the alleged employer has the power to hire and fire employees, (2) supervises and controls employee work schedules or conditions of employment, (3) determines the rate and method of payment, and (4) maintains employment records.”  See Jensen v. Redcliff Ascent, Inc., No. 2:13-CV-00275-TC-EJF, 2014 U.S. Dist. LEXIS 82478 at *6-8 (D. Utah June 17, 2014) (discussing tests applied by various circuits); Baker v. Flint Eng’g & Constr. Co., 137 F.3d 1436, 1440-41 (10th Cir. 1998).  And Fifth Circuit, “whether an individual or entity is an employer, the court considers whether the alleged employer: ‘(1) possessed the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.’”  Williams v. Henagan, 595 F.3d 610, 620 (5th Cir. 2010).

Thus, the takeaway for employers to remember is that under the NLRB and FLSA, liability typically attaches to any entity, regardless of whether it is the “hiring-employer,” when that entity exercises control over determining the terms and conditions of employees’ employment.

ELDER LAW

In Estate Planning on March 21, 2019 at 1:05 PM

By Sean Townsend and Deirdre Kelly Trotter

The law is composed of several specialized fields. Most people have likely heard of criminal law, family law, or business law and are aware of the particular types of issues each encompasses. Elder law is no different. Elder law is an area of legal practice that specializes on issues that affect the aging population. Elder law developed as a specialty because, with advances in technology and medicine, lifespans increased and there was a greater need for medical care, care giving, and financial management. The purpose of elder law is to prepare the elderly person for financial freedom and autonomy through proper financial planning and long-term care options. The main issues in elder law revolve around the regulation of federal benefits, estate and financial planning, and elder abuse.

Federal Benefits

There are numerous federal benefits that senior citizens in the United States are eligible for, such as Supplemental Security Income (SSI), Social Security, Medicaid, and Medicare. These benefits protect individuals from becoming deprived of the basic necessities of life after the age of retirement. SSI provides many citizens over the age of 65 with a minimum guaranteed income. Every state except Arizona, Mississippi, North Dakota, and West Virginia currently pays a state supplement to its disabled residents who receive SSI. However, some states pay a supplement only when a person with a disability lives in a certain setting, such as an adult care home or nursing home. Financial need determines eligibility for SSI. Social Security benefits, on the other hand, are not distributed based on need but on income earned during the individual’s life. Payroll taxes paid by workers and employees pay for Social Security benefits. Eligible individuals may choose to receive social security benefits starting at age 62.

Federal benefits also provide health insurance to the elderly population. Medicaid is a joint federal-state program that provides health and nursing-home insurance to seniors. Medicare is a federal program that covers acute medical coverage to individuals over the age of 65. Eligibility for Medicaid is based on financial need whereas Medicare is based on age.

Estate and Financial Planning

Estate planning is a familiar topic among elder law attorneys that involves the transfer of a person’s property to his or her intended beneficiaries after death. This often occurs through the probate process—a somewhat complicated and legal process. Estate planning usually involves a person writing a will stating how the person wants his or her property distributed after death. Estate planning also encompasses what to do when someone becomes incapable of caring for himself or herself. A person can designate someone to have a Durable Power of Attorney (DPOA) over his or her financial affairs and a Medical Power of Attorney over his or her healthcare decisions should he or she become incapacitated.

Another option in estate planning is to set up a trust to manage his or her property either while living or upon death. The establisher of a trust creates the trust and transfers property to the trustee’s control. The appointed trustee then administers the trust, often disbursing funds in accordance with the terms of the trust. In drafting these instruments, the elderly must consider the tax ramifications and probate laws. If a person dies without an estate plan, his or her property is distributed in accordance with applicable state laws. This is known as intestate succession. Approximately 60% of American adults do not have a will.

Elder Abuse

Each year, family members, caretakers, and strangers subject many senior citizens in the United States to mental, physical and financial abuse. Elder abuse is primarily regulated by individual state Adult Protective Services (APS) agencies. Physical abuse of elders includes beating, forced feeding and sexual abuse by a third party. An elderly person can also be guilty of self-neglect. All states have enacted some form of elder abuse prevention laws. Physical abuse and financial exploitation of elders are considered crimes and may be prosecuted as felonies. Additionally, some forms of emotional abuse and neglect may also result in criminal liability for the abuser.

Self-neglect occurs when an elderly person can no longer meet his or her basic daily needs as a result of impaired mental or physical capacity. Signs of self-neglect include unsafe or unsanitary living conditions, poor personal hygiene, weight loss, and unattended injuries. In a case of self-neglect, the state APS should be contacted to assist the elderly individual. If an elderly person’s self-neglect is affecting his or her finances or health care and he or she still has the mental capacity, the elderly person can sign a power of attorney naming a trusted individual as his or her agent to make financial and health care decisions on the elder’s behalf. If the elder is lacking mental capacity to sign a power of attorney, a guardianship or conservatorship may be required. A conservator or guardian is appointed and supervised by the court and is normally granted the authority to manage the personal, financial, and health care decisions of an adult who is not able to do so on his or her own.

Sources

Elder Law, JUSTIA, https://www.justia.com/elder-law/

What is Elder Law?, FINDLAW, https://elder.findlaw.com/what-is-elder-law/elder-law-basics.html

What Are State Supplemental Benefits for SSI Disability?, DISABILITYSECRETS, https://www.disabilitysecrets.com/dnewsblog/2010/01/what-are-ssi-disability-state.html Barbranda Lumpkins Walls, Haven’t Done A Will Yet?, AARP (Feb. 24, 2017), https://www.aarp.org/money/investing/info-2017/half-of-adults-do-not-have-wills.html

End of life planning is more than a will . . .

In Estate Planning on July 26, 2018 at 8:55 AM

Have you considered how you will exit this life? Most of us don’t want to think about dying, but thinking about it is an important part of living. While everyone should have a will, equally important documents include powers of attorney, both property and medical, and a directive to physicians (living will). Other documents that are helpful include Designation of Guardian in the Event of Later Incapacity or Need of Guardian, Declaration for Mental Health Treatment, and Appointment for Disposition of Remains.

Why are these documents important? If you become incapacitated, either through age, disease, or accident, you may no longer be legally competent to enter into agreements for the handling of property, accounts, filing tax returns, handling bank accounts, and meeting daily living requirements. A durable power of attorney would allow a trusted person to handle these matters on your behalf when you cannot. In the event of mental incapacity or unconsciousness, it might be necessary for your loved ones to seek a guardianship over you and your estate, either temporary or permanent, in order to handle your property, pay bills, etc.

In the event you no longer have mental capacity or you are unconscious, someone needs to be able to make medical decisions on your behalf. Without a medical power of attorney, it might be necessary for your loved ones to seek a guardianship over you, either temporary or permanent, in order to make necessary medical decisions. While someone who is the next of kin may be allowed to assist your doctors with your medical care, in the event your family members have equal status under the law and cannot agree on your care, court intervention may be necessary. Designating a person to act on your behalf could save unnecessary family conflict.

A directive to physicians (aka “living will”) will make your desires known in the event you are facing a terminal condition from which you are expected to die within six months, or if you have an irreversible condition and cannot take care of your or make your own decisions. With the directive to physicians you can make the decision whether to receive life support that could prolong your life, or determine that you do not want to receive life support saving your family the necessity of making that very difficult decision for you, again saving unnecessary family conflict in the event the family cannot agree on the best course of action.

The declaration of guardian in the event of later incapacity or need allows you to decide who you would want to take care of your person and your assets in the event you become mentally unable to see to your everyday living needs whether for your person or your estate. The person you designate to act as guardian of your person may be different from the person you designate to act as guardian of your assets/estate. While this document tells a court who you want to act as your guardian, the court is not required to follow your desires, but must have very strong reasons for not appointing the person or persons you designate in your declaration of guardian. You can also expressly disqualify persons from acting as guardian of your person or your estate. The court must comply with this election. Again, this is another action that can be taken by you during the good times to help prevent extra stress and strain if your health takes a turn for the worse.

A declaration for mental health treatment allows you to make known your desires with regard to any mental health treatment that you may need in the event you are unable to understand the nature and consequences of a proposed treatment at some point in the future. In this context Mental Health Treatment includes electroconvulsive treatment, treatment of mental illness with psychoactive medication, and preferences regarding emergency mental health treatment. A declaration for mental health treatment expires on the third anniversary of the date of execution, or when revoked.

Especially important for persons with no next of kin, an appointment of disposition of remains may be the difference between languishing in the county morgue and having your remains disposed of in the manner you desire. If a person has no next of kin or if no next of kin comes forward, no one has the right to dispose of your remains except for local authorities. An appointment of disposition of remains allows you to appoint one or more persons who have authority to take custody of your remains upon your death. Upon execution of the appointment, that person must promise to pay all charges associated with the disposition of your remains. If you have made no other arrangement for disposition of your remains, it may still be that the person you appoint may not be in a position to follow through with your wishes, but without the appointment, no one can take possession of your remains without seeking an administration of your estate, which may be expensive and time-consuming process.

Persons without next of kin need to be especially mindful of what will happen to their remains and their property after they die. Even though the trappings of life are no longer a concern for you, friends or others you leave behind are left without the ability to act. Be mindful of those you leave behind and make necessary arrangements on your own behalf with regard to disposition of your body and your assets, including automobiles, personal property, bank accounts, etc.