NLRB Posting Requirement Suspended Indefinitely

On April 17, employers obtained a reprieve from a new rule requiring them to post the National Labor Relations Board’s (“NLRB”) notice explaining workers’ collective bargaining and other labor rights. The U.S. Court of Appeals for the District of Columbia issued an emergency injunction preventing the NLRB from implementing its rule.

As Lane Powell reported on March 13, the NLRB’s posting requirement was previously upheld by U.S. District Court Judge Amy Berman Jackson in the District of Columbia. Although Judge Jackson invalidated provisions of the rule other than the posting requirement, she refused to delay the April 30 posting deadline while an appeal was taken from her ruling. See Lane Powell’s Legal Update.

On appeal, the District of Columbia Circuit Court of Appeals rejected the NLRB’s argument that its notice requirement should take effect on April 30 and instead delayed implementation of the rule while the appeal is pending. The Court of Appeals will not hear oral arguments on the appeal until September, so a decision on the merits of the posting requirement will be delayed for some time.

Significantly, another federal district court recently issued a decision contrary to Judge Jackson’s decision in a second case pending in South Carolina, Chamber of Commerce v. NLRB. On April 13, U.S. District Court Judge David C. Norton ruled that the NLRB lacks authority to promulgate the notice-posting rule. The NLRB has announced that it plans to appeal that decision.

What Does This Mean For Employers?

Private sector employers covered by the National Labor Relations Act are not required to post the NLRB’s notice regarding workers’ collective bargaining and other rights, and face no regulatory sanctions for not posting it, while the Court of Appeals’ injunction remains in effect. Employers will need to stay tuned until these cases are resolved.

For more information, please contact the Labor and Employment Practice Group at Lane Powell: employlaw@lanepowell.com

This article was written by Lane Powell, PC, and is intended to be a source of general information, not an opinion or legal advice on any specific situation, and does not create an attorney-client relationship with our readers. If you would like more information regarding whether we may assist you in any particular matter, please contact one of our lawyers, using care not to provide us any confidential information until we have notified you in writing that there are no conflicts of interest and that we have agreed to represent you on the specific matter that is the subject of your inquiry.

Is My Independent Contractor Really An Employee

Guest blog post from High Street Partners

Getting your international operations up and running quickly with the right staff can be a tall order. Your company must have the appropriate entity structure in place, register payroll properly and be setup to comply with all relevant taxes, benefit requirements, etc.

The reality is that you may need someone in country working on your behalf sooner than you are able to iron out all the details. This is a common situation in which independent contractors are considered, non employees that can begin doing work on your behalf.

However, there are major risks associated with bringing on an independent contractor. Without proper considerations and detailed contractual agreements, you may find that, although you’ve classified your worker as a contractor, the local authorities in country have actually classified him or her as an employee for tax purposes.

How do you avoid this gray area of misclassification? Ensure that you are hiring only true contractors in the first place. Though each country will have specific employment tests, generally speaking, the following guidelines apply to contractors.

A contractor is free to work for other companies/institutions. True independent contractors are just that—independent. They are not solely bound to one company. If an organization that a contractor works for somehow influences his or her ability to work for other companies, the contractor’s status may come into question.
Contractors do not hold business cards in the name of the company/institution. By very definition, independent contractors are in business for themselves. This means that they should not be given business cards through your company. Otherwise, it implies that they are actually an employee, and have the same rights as an employee. The only business cards a contractor should have are those for his or her own business
A contractor can be readily substituted. A contractor should have the right to substitute another individual in his or her place to handle contractual responsibilities. The idea is that the client of a contractor should be focused on the results, not how the results are delivered. If the contractor cannot be substituted, he or she may be classified as an employee.
Contractors use their own equipment. Independent also means equipment independent of the contracting company. If the client company is responsible for providing materials that are absolutely essential to the contractor’s work, this may signify employee status. Examples can include: telephones, computers, printers, etc.
Contractors are not usually granted stock options and employee incentive plans. Non-employee status typically means no benefits. Along with things like healthcare, stock options and incentive plans are, in most cases, reserved for employees. Though there are circumstances where such options can be offered to independent contractors, doing so without risking an employee classification may require the assistance of an experienced advisor.

Typically, outside of these guidelines, everyone else will be considered an employee, and entitled to all the rights and benefits that come with that status. Where a true contractor relationship does exist, to avoid any complications, it is best to arrange for a detailed contractor agreement to be in place before work actually starts.

If you have an interest in best practices for international hiring, please check out our archived webinar with High Street Partners.

Do You Deal With Multistate Taxation? Then You Must Read This!

Did you know that watching an Ascentis webinar could earn you RCH credits from the American Payroll Association or the Human Resource Certification Instititute? Did you also know that all of our webinars are free of charge and are full of uself and timely information for HR and Payroll professionals?

For instance, during our April 10th webinar on “Multistate Taxation” we covered a lot of important points in 60 minutes. Our attendees learned that:

Most employers are required to withhold state income tax from employee’s wages
Alaska, Florida, Nevada, New Hampshire, South Dakota, Texas, Washington & Wyoming have no state income tax
Tennessee does not require income tax withholding

Or for local taxes, did you know that some are paid by the employee, some the employer and some are levied on both the employee and employer?

Attendees learned about resident qualifacations, the four factor test for SUI, reciprocal agreements, and how to determine state withholding liability.

Download the presentation pdf and watch this archived webinar to learn more about multistate taxation.

Does Immigration Law Make You Want to Stick Your Head Through a Wall?

Have you been thrust you into international hiring as part of your job and you don’t know where to start? Has your company opened or merged with an international office?

Then you won’t want to miss this informative webinar.

Date:	Tues. Mar. 27	Time:	10 AM PDT
Location:	Online	Cost:	Free
Duration:	1 hour	Credit hours:	N/A
Presenter:	Jon Velie – Velie Law Firm

FILL OUT THIS FORM TO REGISTER NOW*

Why you should attend this webinar:

Ascentis and Velie Law Firm invite you to an informational webinar that explains the processes, issues and strategies of obtaining visas for international employees. Presented by Jon Velie, immigration attorney, this 45-minute presentation will focus on the concerns and struggles that businesses face when obtaining visas for international employees and the legal requirements for various types of visas.

Specific areas covered in this presentation include:

L-1 International Transferee Visa
H-1B (Specialty Occupation Professional)
H-3 Trainees
E3 Visa (For Australians following Specialty Occupation Professional)
TN-1 Visa (NAFTA Workers)
J1 Visa (Management Trainee or Intern)
E1/E2 Visas (Treaty Trader/Treaty Investor)
EB1 Permanent Residency Visa
EB2 Visa (Degreed Professionals, Skilled Professionals & Other Workers)
EB3 Permanent Residency Visa

In addition, you will have the chance to ask your most pressing questions about immigration law in the live Q&A session following the presentation. If your company is preparing to expand internationally – or is in the process now – you won’t want to miss this event.

Lastly, if you are a current Ascentis Customer, you’ll want to tune in for a special announcement.

About Jon Velie:

Jon Velie is the recipient of the American Bar Association Louis M. Brown Legal Access to Justice Award, an international speaker on immigration law, the editor in chief of Immigration Magazine, and the President of Velie Law Firm. He received his bachelor of arts degree in Native American studies from the University of California at Berkeley in 1989 and graduated from the University of Oklahoma College of Law in 1993. He is a member of the Bar of the United States Supreme Court, Tenth Circuit Court of Appeals, U.S. District Court for the Northern, Eastern and Western districts of Oklahoma, Anadarko Court of Indian Offenses, Absentee Shawnee Tribal Court and Oklahoma Supreme Court.

*Space is limited. Reserve your Webinar seat now. After registering you will receive a confirmation e-mail that contains attendance information. Be sure to whitelist the domain @citrixonline.com so that your webinar confirmation doesn’t get caught in your spam or bulk email folder.

Registering for an Ascentis webinar means you will be receiving occasional informational, educational and solutions emails from Ascentis. You may unsubscribe at any time.

Ascentis Blog

Information to help HR and payroll managers, recruiters, and compliance officers become more effective.