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.

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.

SUPREME COURT TURNS DOWN TRUMP ADMINISTRATION’S APPEAL TO END DACA

In Immigration on February 28, 2018 at 11:44 AM

On September 5, 2017, the Trump Administration rescinded the Deferred Action for Childhood Arrivals (DACA) program that had protected nearly 700,000 young undocumented immigrants brought to the U.S. as children from deportation. In a statement made after the decision was announced, President Donald Trump blamed President Obama for creating the program through executive authority, and urged Congress to come up with a solution. He also set a deadline of March 5, 2018 for Congress to address the issue. However, the Supreme Court has just given DACA recipients more time.

On September 8, 2017, the University of California filed a complaint challenging the Trump Administration’s rescission of the DACA program, and asking the court to enjoin the implementation of the rescission. On January 9, 2018, Judge William Alsup of the U.S. District Court for the Northern District of California ordered a halt to the federal government’s termination of DACA. In the case, Regents of the University of California, et al. v. Department of Homeland Security, et al., Judge Alsup ruled that President Trump’s rescission of DACA did not comply with the Administrative Procedures Act (APA), and granted a preliminary injunction blocking the end of the program while the case moves forward. As a result, U.S. Citizenship and Immigration Services (USCIS) was required to begin accepting DACA renewal applications again.

In a highly unusual move, the Trump Administration then sought to skip over the court of appeals by having the Supreme Court consider Judge Alsup’s January 9 order. The Supreme Court rarely hears a case before a lower appeals court has a chance to consider it. However, on February 26, 2018, the Supreme Court declined to hear arguments in this case, meaning DACA recipients can continue to renew their applications while the case works its way through the legal system.

It is important to note that by rejecting the Administration’s request, the Supreme Court is not ruling on the legal merits of the DACA program itself, or about the legal arguments regarding the Trump Administration’s decision to end DACA. The Court is, however, insisting that the case proceed the normal way, with the Ninth Circuit Court of Appeals hearing the Administration’s appeal of Judge Alsup’s order and the Second Circuit Court of Appeals hearing an appeal of a similar ruling by Judge Nicolas G. Garaufis of the U.S. District Court in Brooklyn, New York. On February 18, 2018, Judge Garaufis held that the recession of DACA was “arbitrary and capricious,” and that the equities and reliance interests favored an injunction.

BACKGROUND ON DACA

DACA was established in 2012 in order to provide temporary relief from deportation to undocumented immigrants who were brought to the United States as children through no fault of their own. Those who qualified were allowed to apply for deferred action from deportation and work permits in two year increments. After President Trump’s rescission announcement, eligible DACA recipients whose authorization was to expire between the date of that announcement and March 5, 2018 were still able to apply for a two-year renewal if they did so by the deadline of October 5, 2017. However, many applicants missed the deadline for various reasons, and ended up losing their DACA status.

WHO CAN APPLY FOR DACA UNDER THE NEW CALIFORNIA RULING?

When President Trump first announced that DACA was being terminated, USCIS only allowed people with expiration dates between September 5, 2017 and March 5, 2018 to apply for renewal. However, under the Court’s ruling, that deadline does not apply. If you were previously granted DACA, you may now submit an application to renew your DACA, even if it has expired. USCIS, however, will not accept DACA requests from individuals who were not previously granted DACA. You can also apply for renewal if your last application was rejected specifically due to not meeting the October 5, 2017 deadline.

USCIS guidance states that recipients whose previous DACA expired on or after September 5, 2016, may still file a renewal request. However, persons whose DACA expired before September 5, 2016 must file a new initial DACA request. DACA recipients whose previous DACA was terminated at any point cannot request DACA as a renewal, but may file a new initial DACA request. However, USCIS will no longer accept or approve advance parole requests from DACA recipients.

USCIS will continue to accept DACA renewal requests in accordance with the DACA policies in place before DACA was rescinded on September 5, 2017. USCIS has encouraged applicants to apply 150 to 120 days in advance of the expiration of their prior DACA grants. The DACA form instructions state that USCIS “may” reject a renewal application that is filed more than 150 days in advance of the expiration. However, the DACA FAQs states that renewal requests received more than 150 days in advance of their expiration will be accepted by USCIS, but could result in an overlap between the applicant’s current DACA and their renewal DACA.

If you have received citations, been arrested, or been criminally charged or convicted since initially receiving DACA, you must gather evidence of these contacts with law enforcement or the courts. Under these circumstances, we highly recommend speaking to an attorney prior to applying. Due to the recent change in who is considered an “enforcement priority” by DHS, the risks associated with applying may be greater now than they were under the Obama Administration. Also, if you have a deportation order, voluntary departure order, or an administratively closed immigration case, we also highly recommend speaking to an attorney before applying to renew your DACA status.

It is also important to note that while the preliminary injunction by Judge Alsup effectively restores the DACA program to the status quo as of September 4, 2017, the day before the President’s rescission announcement, it does not go so far as to require that the government actually grant any particular DACA applications or renewal requests. In order to comply with the Court’s order, the government need only continue to consider such applications and requests.

WHAT IS THE FUTURE OF DACA?

Although the government could have sought a stay of Judge Alsup’s preliminary injunction, it did not do so. Thus, for now the government must continue to accept DACA renewal applications in accordance with Judge Alsup’s preliminary injunction. However, Judge Alsup’s ruling did not hold that the rescission of DACA itself was unlawful. Nor did he hold that DHS may not rescind the program. Upon remand, the agency is still free to end the DACA program, but it would need to put forward a more solid rationale for doing so that would survive a challenge under the APA. The renewal program may be available indefinitely or it may be stopped by another court depending on how the case proceeds in the courts, so if you are eligible to renew your DACA status, it makes sense to file your application as soon as possible.

Meanwhile, in spite of the Administration’s attempt to leapfrog the appeals process via the Supreme Court, Judge Alsup’s order temporarily extending the DACA program is still pending review in the U.S. Court of Appeals for the Ninth Circuit, and Judge Garaufis’s similar ruling is also pending review in the U.S. Court of Appeals for the Ninth Circuit. So far, the Administration has taken no steps to block either of these injunctions.
However, this most recent decision by the Supreme Court means these cases will likely have to work their way through the lower courts before any final ruling by the Court on the issue is possible. And, because that could take many weeks or months, this decision is also likely to further reduce pressure on Congress to act quickly on the fate of DREAMers.

While the fate of DACA and its beneficiaries, known as DREAMers, continues to be adjudicated in the courts, it has also been a central issue in recent battles over the budget on Capitol Hill. With the clock running down, some lawmakers have been searching for a deal on legislation that could afford DREAMers a means to stay in this country legally, but no deal has been reached thus far. The business and education communities have joined Democrats and many moderate Republicans in supporting the program, citing the contributions to society from the population and the sympathetic fact that many DREAMers have never known another home other than the United States.