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.

F2A CATEGORY IS CURRENT FOR JULY BUT YOU HAVE TO ACT NOW!

In Immigration on July 17, 2019 at 9:42 AM

After a three year wait, the F2A Preference Category for Spouses and Unmarried Children of Permanent Residents is finally current for all countries during the month of July 2019. Accordingly, spouses and minor children (under 21) of Legal Permanent Residents, who are currently in the U.S., and in lawful immigration status, may apply for Adjustment of Status concurrently by filing Form I-130 together with Form I-485. F2A beneficiaries with pending I-130 Petitions may also file Form I-485 when their priority date is current according to the Final Action Dates on the USCIS website.

The long and short of it is that F2A will be “current” for everyone in July, pursuant to the July 2019 Visa Bulletin. https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2019/visa-bulletin-for-july-2019.html. Other family-based categories must use the Dates for Filing table.  https://www.uscis.gov/visabulletininfo.

Thus, if you are a green card holder, you should sponsor your spouse and children as soon as you can. Or, if you have already sponsored them, make sure they apply for their green cards immediately. Also, if you’re a legal permanent resident who has been thinking about getting married, this may be an ideal time to move forward with those plans.

It’s important to note, however, that the F2A category receives a higher level of scrutiny compared to the immediate relative category. Accordingly, it’s very important that you properly determine your eligibility to adjust status. An experienced immigration attorney can help assist you with this process.

The F2A category should remain current through September.

Great News for Filipinos!

The Employment-Based 3rd category for Filipinos is also current for the first time in many years.  You can qualify for an EB-3 visa if you’re a skilled worker, an experienced professional, or an unskilled worker whose job isn’t seasonal or temporary. If you fall under one of these categories, and have been sponsored by a U.S. employer, you can file your I-485 Application to Adjust Status this month.

Also, if you’re in the U.S. on a temporary work visa, and your employer has filed an I-140 visa petition for you, you should file your I-485 application for adjustment of status this month.  However, if you’re outside the U.S., you should have your employer file your I-140 via USCIS’s premium processing option in order to expedite your application. Once it gets approved, you should send your paperwork to the National Visa Center as soon as possible in order to expedite your green card interview.

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