1. Can We All Just Get Along (Part II): Emerging Trends in
Employment Litigation Affecting the Way We Do Business
J. T. Wilson III, Partner
550 West Adams Street, Suite 300
Chicago, Illinois 60661
Johner.Wilson@lewisbrisbois.com

2. Key Topics
• Overview
• Joint Employment Analysis
• Collective Bargaining Units
• Recordkeeping

3. EEOC Charges – By Classification
FY 2011 FY 2012 FY 2013 FY 2014 FY 2015
Total Charges 99,947 99,912 93,727 88,778 89,385
Retaliation – All Statutes 37.4% 38.1% 41.1% 42.8% 44.5%
Race 35.4% 33.7% 35.3% 35.0% 34.7%
Sex 28.5% 30.5% 29.5% 29.3% 29.5%
Disability 25.8% 26.5% 27.7% 28.6% 30.2%
Age 23.5% 23.0% 22.8% 23.2% 22.5%
National Origin 11.8% 10.9% 11.4% 10.8% 10.6%
Religion 4.2% 3.8% 4.0% 4.0% 3.9%

4. • Meet Lucy…
Employee vs. Contractor

5. Who is an Employee?
VS.
Independent Contractor Employee

6. Traditional
Contractor
vs.
Employee
Analysis
CONTRACTOR EMPLOYEE
Control Minimal Significant
Investment Significant Minimal
Profit and Loss Significant Minimal
Permanence Temporary Extended
Skill Unique/distinct Basic
Skill Minimal Significant
Integral Part Ancillary Primary

7. You’re Really an Employer (Too)!
• On August 27, 2015, the NLRB announced
its decision in Browning-Ferris Industries of
California, Inc., greatly expanding the
definition of joint employer.
• The Result: 30 years of case law interpreting
who is a “joint-employer” – GONE.

8. Changing of the Guard…
Right to Control
Terms and Conditions
Exercised Control
Integral Part/Core
Direct
Unilateral
Before Browning-Ferris But now…
Indirect
Narrow Broad/Inclusive
Share/Co-determine

9. Case Study:
Key Considerations
Management Structure
Hiring
Discipline/Termination
Wage and Benefits
Scheduling and Hours
Work Processes
Training and Safety
How Does This Work?

10. Collective Bargaining Units

11. Removal of Employer Consent
Miller & Anderson, Inc.
• Petitioners seeking to represent employees in bargaining units that
combine both solely and jointly employed workers of single user employer
are no longer required to acquire employer consent
Issue
• Whether under the NLRA employees of user employer (sole and joint)
must obtained employer consent for purposes of collective bargaining as
a single unit (including temporary employees)
Result
• Petitioned-for units combining solely and jointly employed workers of
single user employer must share community of interest

12. Increased Risk of Liability for
Railroad/User Employer
• Joint Employment based on
right to control
Browning-
Ferris
• RLA not block finding of joint
employer status of user
employer outside of NLRA
Airway
Cleaners, LLC
• Single and joint employees of
user employer can combine
as bargaining unit without
consent
Miller &
Anderson, Inc.

13. Recordkeeping
• Investigation
• Enforcement of workplace
• Safety incentive programs
• Reward no recordable
injuries

14. Protection for Railroad Employer
WRITTEN
AGREEMENTS
CULTURE
DUE DILIGENCE ACCOUNTABILITY

15. Minimizing Potential Claims

16. Don’t Become A…

17. Thank You!
J.T. Wilson III
Johner.Wilson@lewisbrisbois.com
312.463.3340