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SHRM Newsletter: NLRB Broadens Joint Employer Definition
Posted on Aug. 31, 2015

This is Utah SHRM Legal-mail no. 2015-14 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).








NLRB BROADENS JOINT EMPLOYER DEFINITION: The National Labor Relations Board (NLRB) has issued a decision broadening the definition of what constitutes a joint employer for purposes of the law enforced by the NLRB. The new NLRB test finds a joint status when entities “share or determine those matters governing the essential terms and conditions of employment” even if they do not actually hire, fire or determine wages. The previous test focused on the totality of the facts to ask whether the involved entities “meaningfully affect[ed] matters relating to the employment relationship, such as hiring, firing, discipline, supervision and direction.” This case resulted when a union sought to represent sorters, housekeepers and screen cleaners employed by a subcontractor performing sorting, screen cleaning, and housekeeping work.  The Union claimed that the waste/recycling company that hired the subcontractor was a joint employer because it contracted with the sub to obtain temporary labor. Because the company could arguably control the sub’s employees on site, it was a joint employer even through it did not exercise actual control. The decision potentially expands joint employer status of companies who contract with subs, such that the sub’s employees may be deemed jointly employer by the company.

ASHLEY MADISON HACK IMPACTS EMPLOYERS: Like the Amazon story a few weeks ago, another recent major news story has huge HR implications for businesses. Ashley Madison is an online company that uses its technology to facilitate romantic affairs. The company’s motto is “Life is short. Have an affair.” A recent Forbes magazine article indicated that some thirty million men--one in four married American males--was signed up on the site. The site recently was hacked and the hackers released information showing the millions of email addresses used to sign up for the site. Many of the persons who signed up used their work email addresses to do so, including from both public and private employers. Some of the members also used work email systems to send sexually explicit photos and chats on the site. A number of employers whose names or sites or systems were implicated are now dealing with some unpleasant and negative fallout related to the scandal. This story is a good reminder that employers need to articulate and enforce clear policies outlining that employees do not have privacy rights in company equipment, and explaining the appropriate and inappropriate use of company computers, internet and email systems. Moreover, here is a link to a good article outlining the questions an employer should ask itself before firing someone caught up in the scandal:

VIRGINIA TV NEWS MURDERS A LESSON FOR EMPLOYERS: Another major national news story also is essentially an employment law news story. Recently, a disgruntled former employee of a Virginia TV news station shot and killed two of his former colleagues as they themselves were doing a live morning news report. The former employee had filed discrimination claims against other employers and made similar allegations at the TV station where he last worked. When the employee was fired a few months before the shooting, he allegedly reacted so angrily that the TV station employer had to call the police. This sad story is a timely reminder that discipline, corrective action and discharge of employees are actions that can lead to unpleasant and even violent reactions from the persons impacted. Employers taking adverse actions must proceed carefully to ensure that they respect the dignity of the impacted employees. They also should take appropriate steps to limit, prevent or respond to possible violent or emotional reactions from those employees.

EEO-1 SURVEY FOR 2015 NOW OPEN: The EEO-1 is an annual survey required to be filed by all private employers with 100 or more employees and federal government contractors or first-tier subcontractors with 50 or more employees and a contract or subcontract of $50,000 or more. The filing of the EEO-1 report is not voluntary, and is required by federal law. The filing deadline is September 30, 2015. More information is available here:

COMMENTS DUE SOON ON NEW DOL OVERTIME RULES: The United States Department of Labor (DOL) has proposed rules significantly increasing the minimum salary required to classify an employee as exempt under the Fair Labor Standards Act (FLSA). Comments from the public on the proposed rules are due by no later than Friday, September 4, 2015. DOL will review the comments and finalize the rules sometime later this year. Information on how you can comment is available here:

UTAH SHRM’S CROSSROADS CONFERENCE JUST AROUND THE CORNER: Get the most relevant, best practices for optimizing today’s workforce at Utah’s annual SHRM Crossroads Conference. What can you expect this year? Among other things, there are over 20 breakout sessions addressing today’s most pressing HR concerns, four incredible keynote speakers, a special Q&A Session with Libby Sartain, a phenomenal employment law track and fantastic opportunities to Network with HR professionals and peers. Utah’s Crossroads Conference is scheduled for September 22-23, 2015 at the Davis Conference Center in Layton, Utah. Visit for more information.

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mikeAttorney Michael
Patrick O'Brien

Mike O’Brien is an experienced and accomplished employment attorney, media lawyer and courtroom litigator.  He is active in SHRM and has received the highest possible reviews from rating services like Martindale - Hubbell (AV rating), Chambers USA, Utah Business Legal Elite, Best Lawyers in America, Who’s Who Legal USA, and SuperLawyers.  HR Executive Online has named him as one of America’s most powerful 100 employment lawyers, but keep in mind, this does not mean he is good at moving heavy furniture.

Awards and Recognition


OBrien Best

Chambers 2011 Attorney

Super Lawyers
Michael Patrick O'Brien

Best Lawyers In America, “Salt Lake City Best Lawyers Employment Law Lawyer Of The Year,” 2011-2012

Best Lawyers In America, First Amendment Law, Labor And Employment Law, 2005-2012

Chambers USA, Labor & Employment, 2003-2011

Employment Lawyer Of The Year, Utah State Bar, 2001

Human Resources Executive, Nation’s Most Powerful Employment Lawyers In America, 2010

Mountain States Super Lawyers, 2007-2012

Utah Business Magazine, Legal Elite, Labor And Employment, 2006-2012