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Problems with the New Test for Joint-Employer Status
This past summer, the National Labor Relations Board (NLRB) reversed over 30 years of precedent and adopted a new, more expansive and ambiguous standard for determining joint employer status. (See Molly Kaban, Raymond Lynch: “The NLRB Joint Employers Ruling,” Employment Law Strategist, November 2015.) The new standard promises to entangle businesses with only tenuous links to another employer's workforce in a morass of collective-bargaining obligations and unfair labor practice liability for workforces over which they exercise no actual control.
The new test for joint-employer status articulated in Browning-Ferris Industries, 362 NLRB No. 186 (2015), “has dramatic implications for labor relations policy and its effect on the economy,” Board members Miscimarra and Johnson wrote in a 28-page dissent, attacking the majority's logic and highlighting the problems the new standard is sure to create for employers and for the collective bargaining process itself. The dissent stated:
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Compliance Officers: Recent Regulatory Guidance and Enforcement Actions and Mitigating the Risk of Personal Liability
This article explores legal developments over the past year that may impact compliance officer personal liability.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.