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IQMS Software Validation for FDA : Dec 13th - Does anyone have any experience with validating their IQMS ERP system for the FDA standards? Who you used - internal vs external? Any feedback would be much appreciated. Thanks, Greg
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New Immigration Law in CA : Nov 29th - Effective January 1, 2018, California’s Immigrant Worker Protection Act, AB 450, imposes new obligations on California employers. In light of the Trump administration’s increased immigration enforcement efforts, the California legislature enacted this law to protect employees from enforcement in the workplace. Accordingly, California’s public and private employers must comply with numerous state-imposed legislative requirements: > Employers are prohibited from voluntarily consenting to an immigration enforcement agent’s request to enter non-public areas of the workplace; however, employers must comply with a judicial warrant. > Employers are prohibited from voluntarily consenting to an immigration enforcement agent’s access, review, or procurement of employee records; however, employers must comply with a subpoena or court order. > Employers are prohibited from re-verifying employment eligibility of a current employee, unless required by federal law. > Employers must post notice of an immigration worksite enforcement action within 72 hours of receiving a notice of inspection of employment records. The notice must include - > The name of the immigration agency conducting the inspection; > The date the employer received notice of the inspection; > The nature of the inspection, to the extent known; and > A copy of the notice of inspection. California’s Labor Commissioner is charged with developing a template notice for employer use by July 1, 2018. > Employers must provide a copy of the written immigration agency notice with the inspection results within 72 hours of receipt to affected employees and any affected employees’ authorized representatives. Within 72 hours, employers must also hand-deliver individualized notices to affected employees and any affected employees’ authorized representatives that detail the resulting obligations of the employer and employee. The notices must include - > A description of any and all deficiencies or other inspection results related to the affected employee; > The time period for correcting any deficiencies identified by the immigration agency; > The time and date of any meeting with the employer to correct the deficiencies; and > Notice that the employee has the right to representation during any scheduled meeting with the employer. While California’s new legislation does not present a direct conflict with federal law, its requirements are bound to raise difficult questions for employers aiming to fully comply with both federal and state law. Employers must grapple with questions like which agents qualify as immigration enforcement agents and whether the new law implicitly bars employers from conducting internal I-9 audits. The answers to these questions remain somewhat unclear. Thus, compliance may prove to be problematic and penalties for non-compliance are steep. An employer that unlawfully re-verifies a current employee’s employment eligibility may face a civil penalty of up to $10,000. Likewise, failure to comply with any of the other statutory provisions may result in civil penalties of up to $5,000 for a first offense and $10,000 for subsequent offenses. Moving forward, employer representatives responsible for interfacing with immigration enforcement agencies should be made aware of these recent legislative developments. However, until the mandates of the law are more clearly delineated, employers should proceed with caution. If you have any questions on this topic, please contact a member of our Labor & Employment Practice Group. H. Alan Rothenbuecher at arothenbuecher@beneschlaw.com or 216.363.4436 Linda Gemind at lgemind@beneschlaw.com or 216.363.4609 Rick Hepp at rhepp@beneschlaw.com or 216.363.4657 Karly B. Johnson at kjohnson@beneschlaw.com or 216.363.6265
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Future of Sales Brochures : Nov 27th - We are running low on our current sales brochures we use for customer visits. An internal debate has developed on whether we should update and print a new sales brochure or just eliminate and focus more on digital opportunities, flash drives, virtual brochures, website, etc. I would appreciate anyone's comments or feedback. Thanks, Team 1 Plastics Craig Carrel Craig Carrel
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NLRB Rules against Employee Status for Menard's Drivers : Nov 22nd - A National Labor Relations Judge dismissed an action brought by the National Labor Relations Board (“NLRB”) regional director against Menard, Inc. (“Menards”) for misclassifying its independent contractor (“ICs”) drivers in violation of the National Labor Relations Act (“Act”).[1] The underlying action was originally submitted to the NLRB in August 2016 by Local 153, Office & Professional Employees International Union, AFL‑CIO, alleging that Menards was in violation of Section 8(a)(i) of the Act. The basis of the alleged violation was that Menards’ delivery drivers were misclassified as ICs rather than employees and that the hauling contracts contained mandatory arbitration clauses limiting the putative employees from filing class actions and/or claims for unfair labor practices with the NLRB. Menards is the business of selling home improvement merchandise from its 300/plus stores located throughout the United States. In addition, Menards offers delivery services for its customers purchasing its store merchandise by contracting with hauling contractors, ICs, to ultimately deliver the merchandise while Menards arranges the delivery and handles the payment from the customer. The Administrative Law Judge (“ALJ”) reviewed the Complaint by evaluating whether the delivery drivers were indeed ICs for purposes of applicability under the Act per Section 2(3). The “ALJ” used the ten (10) factor test established by the United States Supreme Court in determining employee versus IC classification.[2] Through testimony and briefs filed by both parties, it was revealed that Menards utilized three (3) types of hauling contracts with its ICs: 1) one where the ICs provide their own truck with a forklift/crane; 2) one where ICs provide their own forklift truck and Menards provides the trailer; and 3) IC makes deliveries using a box truck/van. It was also disclosed that some ICs operate their own truck while others have multiple trucks and their own employees operating the trucks and some made deliveries for other companies besides Menards. Ultimately, the ALJ went through the various facts relating to Menards’ operation and its interaction with the ICs, and determined by an overwhelming majority that the drivers were independent contractors and not employees. In making such a determination, the ALJ reasoned that: 1) that the ICs had the balance of control over the work; 2) that the ICs were involved in a distinct business; 3) that the ICs supplied the instrumentalities of work; 4) that the ICs had the right to terminate the contracts on short notice; 5) that the ICS were paid by the ‘job’; 6) the parties believed the nature of the relationship to be that of an independent contractor; and 7) that the ICs had meaningful entrepreneurial opportunity as they could provide services for multiple companies and sell their own business. The only factor that weighed in favor of employee status was the ‘level of skill required to perform the services’. The ALJ opined that there was not enough evidence on the record, such as training or CDL requirements, to make a determination of the level of skill required to perform such services. Since the ALJ determined the drivers to be independent contractors and not employees, the drivers did not qualify for protections under the Act and the complaint was dismissed. The ALJ did not even address the issue surrounding the enforcement of the arbitration clause in the hauling contracts. The ruling in this decision is a win for the IC model which has been continuously under fire by unions, and state and federal agencies attempting to undermine the long‑established business model. The decision took into account several facts/factors common to motor carriers operating with ICs. The analysis by the ALJ provides a road‑map for others to compare against their IC agreements and more importantly, their operational actions. If you need assistance or have questions about your agreements/operations, please feel free to contact Richard Plewacki at rplewacki@beneschlaw.com or Matthew Selby at mselby@beneschlaw.com [1] Menard, Inc. & Local 153, Office & Prof'l Employees Int'l Union, Afl-Cio, Case 18-CA-18121 (2017) (not reported in Board volumes). [2] Nationwide Mutual Insurance Co. vs. Darden, 503 U.S. 318 (1992).
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House of Representatives Passes Legislation Limiting Joint-Employer Liability : Nov 15th - On November 7, the House of Representatives voted to pass a bill that would reverse the National Labor Relations Board’s (“NLRB”) ruling in Browning-Ferris Industries, 362 NLRB No. 186 (2015), that greatly expanded joint employer liability for business. Under Browning-Ferris, the NLRB held that a company that has “indirect” or “potential” control over the employees of another company may be considered a joint employer of those employees. That decision is currently on appeal before the D.C. Circuit Court of Appeals. Notwithstanding the outstanding appeal, the House passed the Save Local Business Act 242-181 with eight Democrats crossing the aisle to vote in favor of the Save Local Business Act. Representative Bradley Byrne introduced the Act in the House to combat the significant changes in the joint employer analysis caused by the broad ruling in Browning-Ferris. The bill was co-sponsored by 123 Representatives, including three Democrats. The Save Local Business Act would amend Section 2(2) of the National Labor Relations Act (29 U.S.C. 152(2)) and Section 3(d) of the Fair Labor Standards Act (29 U.S.C. 203(d)) by clarifying when a person or company is a joint employer. A person would qualify as a joint employer under the Save Local Business Act if the person “directly, actually, and immediately, and not in a limited and routine manner, exercises significant control over essential terms and conditions of employment.” Such terms and conditions explicitly include “hiring employees, discharging employees, determining individual employee rates of pay and benefits, day-to-day supervision of employees, assigning individual work schedules, positions, and tasks, or administering employee discipline.” The Save Local Business Act returns the joint employer analysis to the pre-Browning-Ferris standard. Prior to Browning-Ferris a company only qualified as a joint employer if it exercised “direct and immediate control” over another company’s employees, but Browning-Ferris broadened that joint employer standard to determine that any company that possessed “reserved and indirect control” over another company’s employees – even if not actually exercised – could qualify as a joint employer. This new standard significantly altered the determination of when a company qualified as a joint employer, particularly in – but not limited to – franchisor-franchisee or contractor-subcontractor relationships. The Save Local Business Act seeks to codify the prior standard that direct and immediate control over essential terms and conditions of employment is necessary to qualify as a joint employer. Under the Save Local Business Act, determining common marketing or operation strategies would not extend employer liability to an independent entity responsible only for these overarching general strategies or policies. For example, a franchisor or parent company directing its franchisees or subsidiaries to follow consistent promotions or uniform and appearance policies would not qualify as a joint employer under the Save Local Business Act, but arguably would under Browning-Ferris. Similarly, a construction company overseeing a project involving multiple contractors and subcontractors would not qualify as a joint employer under the Save Local Business Act simply because it set a general schedule for when certain components of the project should be completed, although such an arrangement may result in exposure to joint employer liability under Browning-Ferris. The Save Local Business Act will now move to the Senate where the support of at least eight Democrats will be needed to avoid a filibuster in that chamber of Congress. For more information on this topic, please contact a member of Benesch's Labor & Employment Practice Group Peter Kirsanow at pkirsanow@beneschlaw.com or 216.363.4481. Adam Primm at aprimm@beneschlaw.com or 216.363.4451.
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Group List

Allen, Heidi - Quality Director
Bender, Jenn - Marketing Coordinator
Brodine, Dianna - Operations Director/Managing Editor
Brown, Ash - VP, Business Developement
Cudd, Sherry - Advertising and Marketing Manager
Dewing, Jamie - Marketing Manager
Domanoski, Christy - Ad Agency
Dybul, Clinton - Brand Manager
Ewing, Kate - Director of Marketing
Fosco, Al - Marketing Manager
Gafvert, Bob - Business Development Manager
Guevart, Jonathan - Director of Marketing
Haga, Austin - Marketing Coordinator
Hand, Margaret - Marketing Manager
Hanes, Donna - Marketing Coordinator
Hanvey, Thomas - Marketing Manager
Kaberna, Chris - Marketing
Kates, Marcella - communications coordinator
Keller, Brian - Account Manager
Kiley, Laura - Marketing Manager
Kuwatch, Matthew - VP Marketing/Business Dev
Mallwitz, Linda - Marketing Director
Miles, April - Marketing Manager
Nelson, Beth - Marketing Design Coordinator
Perez, Jennifer - Marketing Associate
Pugh, Jamie - VP of Marketing
Raisch, Linda - Sales and Marketing Manager
Roberts, Elizabeth - Marketing Manager
Seaver, Tom - Director of Marketing
Shearer, Melissa - Marketing Manager
Velasco , Jessica - Marketing Assistant
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