Todd Lebowitz

On this blog, we will explore the various legal standards used to determine Who Is My Employee? We will examine new developments, trends, changes in the law, strategies, tips, and whatever else comes to mind.

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According to the British site, The Phrase Finder, the expression When the shit hits the fan “alludes to the unmissable effects of shit being thrown into an electric fan.” That’s lovely. The Cambridge Dictionary (also U.K.) describes the idiom a bit more delicately: “also, when the shit flies, [when] a situation suddenly causes a lot of trouble for someone.” Thank you, British internet! In any event, this expression seems to capture the predicament the NLRB…
I never thought hyenas essentialThey’re crude and unspeakably plainBut maybe they’ve a glimmer of potentialIf allied to my vision and brain – “Be Prepared,” The Lion King The song goes on to warn that “you can’t be caught unawares.” Be prepared. The song neglects to remind companies to check their arbitration agreements for two essential clauses, but that’s why you have me. The Supreme Court delivered its first Kavanaugh-authored opinion late last week.…
Now that the hangover has worn off and the calories have not, it’s time for 2019 New Years’ Resolutions. I know you didn’t ask for help, but you also didn’t not ask. Here are some suggestions for those of you whose companies rely on independent contractors: Do you have one of those doorbells you can answer from anywhere? So do I. That’s because we’re cautious (syn., paranoid). Be similarly cautious that your non-legal, non-HR co-workers…
Please join me and my colleagues in the Employment Group at Baker Hostetler for the 2019 Master Class on Labor Relations and Employment Law.  This year’s event will take place in three locations: I will be presenting on the Gig Economy: Labor Relations Issues, with my colleague Peter Fischer.  We’ll cover 2018-19 developments in joint employment (there are many!) and the future of portable benefits for gig economy workers. One of the best parts about…
The word “backfire” derives from the grooming practices of 15th century Scottish noblemen, who grew beautiful long fiery-red flowing back hair, which they brushed and braided into elaborate patterns, including the “Haggis Flow” and the “Scotch Tape.” Ok, not really. Efforts to rewrite history and change definitions can sometimes fall short of the mark. The NLRB’s grand strategy for rewriting the definition of joint employment may have just backfired. A Court of Appeals decision issued late…
On New Year’s Eve, Sister Sledge will be playing at the Seminole Casino in Coconut Creek, Florida. (You can buy tickets here.  You’re welcome.) The sisters will, of course, play the 1979 single, “We Are Family,” which is a disco song that it’s ok to admit you like. I don’t know what else they’ll play though.  It could be a long night. “We Are Family” is also what happens when a company…
This article describes how gestures that are common in the U.S. can have very different meanings abroad. For example, the “ok” finger gesture is a vulgar bodily reference in Brazil, Germany, and Russia. (Not ok!) The thumbs up gesture in Greece or the Middle East can mean “up yours!” The University of Texas’s “hook ‘em horns” gesture in Italy means you’ve been cuckolded — your wife is cheating on you. Same thing, different meaning. To…
According to the New World Encyclopedia, examples of “suffering” include pain, illness, disability, hunger, poverty, grief, hatred, frustration, heartbreak, guilt, humiliation, anxiety, loneliness, self-pity, and death. According to federal wage and hour law, “suffer” means employment. Ouch. Happy Monday. One of the many problems with the Fair Labor Standards Act (FLSA) — the federal law that sets minimum wage and overtime standards — is that it’s archaic, outdated, old. It was passed in 1938.  Before…
At age 79, Rudolph is the youngest of Santa’s reindeer, having been created in a promotion for the Montgomery Ward department store in 1939. While he reliably shows up every December, Rudolph is still just a seasonal hire, presumably grazing with his caribou cousins somewhere in Lappland or Siberia the rest of the year. Seasonal hires, or temps, present special problems. There are different kind of temps. Temps retained as W-2 employees are regular…
Despite the spread of marijuana legalization initiatives, the term “joint employment” has nothing to do with edibles, 4/20 day, or the prevailing aroma at a Jimmy Buffett concert. Joint employment simply means that more than one entity is a worker’s employer — at least under some applicable law. In joint employment there is usually a primary employer and a secondary employer. The primary employer, for example, could be a staffing agency. The staffing agency pays…