Issue link: http://read.dmtmag.com/i/764739
5 8 V I N E YA R D & W I N E RY M A N A G E M E N T | J a n - F e b 2 017 w w w. v w m m e d i a . c o m ing company's workers. Since that decision, administrative agencies and courts have taken the position that far less control is required. The NLRB now considers wheth- er a company has authority over workers' terms and conditions of employment, either directly or indirectly. The DOL has followed suit. In January 2016, the DOL clarified that, under the FLSA and MSPA, j o i n t e m p l o y m e n t e x i s t s w h e n a w o r k e r h a s a n e m p l o y m e n t relationship with one employer (such as a staffing agency) and economic realities show that the worker is economically dependent on another entity involved in the work. This "vertical" joint employ- ment analysis doesn't focus only on control. The MSPA regulation describes seven "economic reali- ties" factors, and asks whether a company is directing, controlling or supervising — even indirectly — the work performed; controlling employment conditions including the power to hire or fire the work- er, modify employment conditions or determine the rate or method of pay; maintaining an indefinite, permanent, full-time or long-term relationship with the workers; hir- ing workers to perform repetitive and unskilled work; hiring workers to perform work that's integral to the business; requiring work to be performed on its premises; and performing administrative func - tions for workers, such as han- overnight) to disclose terms and conditions of employment to the worker in writing at the time the worker is recruited. The disclosure must include the employment loca- tion, type of crop, employment period, wages and benefits, and cost to be charged for such ben- efits, among other things. This disclosure need only be given to seasonal workers (those who are not required to be away from home overnight) upon request. Companies should ensure com- pliance with these requirements and keep adequate records to fend off DOL investigations or federal lawsuits for alleged violations of the MSPA. CONTRACT OR TEMPORARY WORKERS Companies that use contract or temporary workers during peak times should be especially care- ful. Joint employer laws are rapidly changing. Federal agencies such as the National Labor Relations Board (NLRB) and DOL have recently declared that a business may be liable for exercising indirect con- trol over workers, or reserving the authority to do so. Prior to the NLRB's Browning- Ferris decision in fall 2015, admin- i s t r a t i v e a g e n c i e s a n d c o u r t s generally found that, to be consid- ered a joint employer, a company must exercise actual, direct and substantial control over the staff- dling payroll, providing workers' compensation insurance or provid- ing tools and materials required for the work. Companies that fit some or all of these criteria may be found jointly liable in a lawsuit or administra- tive proceeding regarding these workers' wages, hours and work- ing conditions. Companies should review staffing company contracts, consider how much control they have over the staffing company's workers, and determine whether they can lessen or eliminate any of these factors. IMMIGRATION AND E-VERIFY REGULATIONS The Immigration Reform and Control Act (IRCA) makes it illegal for an employer to hire or continue to employ a worker if the employ- er knows the worker is not legally authorized to work in the United States. Employers must review documents for each new employee and complete an I-9 form within three days of hire to confirm the worker's identity and authorization to work in the United States. Com- panies should confirm that work- ers meet I-9 employment eligibility requirements, whether hired direct- ly or through a staffing company, because a company may be held responsible for its staffing compa- ny's noncompliance. Companies that employ foreign workers with visas through the H-2A guest worker program should also confirm that U.S. Citizenship and Immigration Services (USCIS) has approved a petition for each worker, along with any change of status or extension of stay request. The date on which a worker is per- mitted to start work will depend, in part, on whether the employer is an E-Verify employer in good standing. Currently, use of the E-Verify system is voluntary for most pri- vate employers, except those locat- ed in Alabama, Arizona, Georgia, Louisiana, Mississippi, North Caro- lina, South Carolina, Tennessee or Utah, and those that are required to use E-Verify because of past non- compliance with I-9 requirements. S U B S C R I B E T O D AY ! Av a i l a b l e i n p r i n t a n d d i g i t a l w w w. v w m m e d i a . c o m / m a g a z i n e / s u b s c r i b e . a s p o r c a l l 7 0 7 - 5 7 7 - 7 7 0 0 x 1 0 0 WWW.VWMMEDIA.COM JULY - AUGUST 2016 NORTH AMERICA'S LEADING INDEPENDENT WINE TRADE PUBLICATION The Dawn of Agtech Winemaking Nutrients Annual Suppliers Guide Here Come the Italians! WWW.VWMMEDIA.COM NOVEMBER - DECEMBER 2016 NORTH AMERICA'S LEADING INDEPENDENT WINE TRADE PUBLICATION S p a r k l i n g P a c k a g i n g E n e r g y C o n s e r v a t i o n + C o r k s v s . S c r e w C a p s MOST ADMIRED MOST ADMIRED MOST ADMIRED WWW.VWMMEDIA.COM SEPTEMBER - OCTOBER 2016 NORTH AMERICA'S LEADING INDEPENDENT WINE TRADE PUBLICATION + Water-Saving Technologies + Financing + Craft Beverages Report NEW NORTH AMERICA'S LEADING INDEPENDENT WINE TRADE PUBLICATION WWW.VWMMEDIA.COM Eco-Packaging Evolves B o t t l i n g L i n e s * H a z a r d o u s W a s t e * M a k i n g M e a d MAY - JUNE 2016 < B A C K W A R D & F O R W A R D > L e a d e r s r e f l e c t a n d p r e d i c t B a r r e l C a r e + C r a f t B e v e r a g e s U n l i m i t e d P r e v i e w + C o l d I n j u r y JANUARY - FEBRUARY 2016 WWW.VWMMEDIA.COM NORTH AMERICA'S LEADING INDEPENDENT WINE TRADE PUBLICATION NORTH AMERICA'S LEADING INDEPENDENT WINE TRADE PUBLICATION WWW.VWMMEDIA.COM MARCH - APRIL 2016