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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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PTO Accruals : Nov 13th - We are currently reviewing our PTO accrual levels and I'm curious as to what other companies are offering for PTO (what years of service do accrual rates change and what accrual rates are offered). I've looked on the MAPP website for information, but haven't been able to find anything. If anyone knows of a document that has been published about this, I would love to know where it is located! Thanks! Jen
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2000 ton press time needed : Nov 12th - Projecting a need for 2000 ton press time in April 2018. Should be 3 releases per year and each release should be a 3 day run. Resin will be a carbon filled nylon or PPS. Please contact Andy at avartanian@geminiplastics.net Andy
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The Obama Administration’s Overtime Final Rule: Unlawful and Revisited : Nov 2nd - On October 30, 2017, the Department of Labor (the “Department”) filed a notice to appeal a decision by Judge Amos Mazzant of the Eastern District of Texas, holding that the Overtime Final Rule (“Final Rule”) was unlawful. The Department announced that once the appeal is docketed, the Department of Justice will file a motion with the United States Court of Appeals for the Fifth Circuit to hold the appeal in abeyance while the Department revisits the Final Rule and undertakes further rulemaking. The Final Rule was set to be effective on December 1, 2016. Over 55 business groups and 21 states challenged the Final Rule by filing actions, which were consolidated, in the United States District Courts in Texas. State of Nevada v. United States Department of Labor, No. 4:16-cv-731; Plano Chamber of Commerce v. Acosta, No. 4:16-cv-732. On November 22, 2016, Judge Mazzant granted the State Plaintiff’s Motion for Preliminary Injunction, thereby enjoining enforcement of the Final Rule on a nationwide basis. The Department filed a notice to appeal the injunction, but the Department did not actively defend the Final Rule after President Trump took office. Also pending before Judge Mazzant was Business Plaintiff’s Motion for Summary Judgment regarding the validity of the Final Rule. On August 31, 2017, the judge issued an opinion and order holding that the Final Rule was unlawful. Judge Mazzant concluded that the Department did not have the authority to use solely a salary-level test to affect changes to the overtime exemption of employees functioning in bona fide executive, administrative, or professional capacities. According to Judge Mazzant, it was Congress’ intent to exempt from overtime pay employees who perform “bona fide executive, administrative, or professional capacity” duties. Thus, the Department had to also consider the duties of employees employed in bona fide executive, administrative, or professional capacities in making changes to the availability of the exemption. A few changes that the Final Rule, now invalid, would have made if enacted include: (1) an increase of the annual salary threshold for an overtime exempt position to $47,476; (2) an automatic updating mechanism that adjusts the minimum salary level every three years[1]; (3) the use of nondiscretionary bonuses to satisfy up to 10% of the general salary threshold (if incentives were made on a quarterly or more frequent basis); and (4) an increase of the annual highly compensated employee’s salary threshold from $100,000 to $134,004. Looking Forward: Employers should note that the Final Rule will not take effect for now but should seek counsel regarding this issue. Given that the DOL will be conducting further rulemaking, the Final Rule likely will not survive as written. We will continue to monitor developments on this issue and provide an update. For more information on this subject, please contact a member of Benesch's Labor & Employment Practice Group. Peter Kirsanow at pkirsanow@beneschlaw.com or 216.363.4481. Nancy Chawla at nchawla@beneschlaw.com or 216.363.4549. [1] Because the Court determined that the Final Rule was unlawful, the Court also held that the automatic updating mechanism was unlawful.
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Group List

Aleshire , Amy - Sales Administrator
Allison, Kevin - Business Dev Mgr
Andre, Rich - Director of Sales
Arduini, Alan - Vice President of Sales
Arends, Dirk - Business Development Manager
Baer, David - Director Business Development
Baker, Andy - Strategic Account Manager
Baker, Jeff - VP of Sales
Baker, Chris - Business Development Manager
Baril, Doug - VP Engineering and Services
Barr, Steve - Sales/Eng Manager
Beaudette, Joel - VP Sales
Bender, Kyle - Sales Account Manager
Biehl, Nathan - Business Development Mgr
Biondo, Dave - Sales Development Manager
Bott, Jim - North American Sales and Marketing Manager
Bronk, Brian - Sales
Brookes, JoAnne - Vice President of Sales
Brown, Steven - Sales Engineer
Buchenroth, Dustin - Business Development Manager
Carroll, Judy - Sales Manager
Chattaway, Jeffrey - Account Manager
Clem, Ryan - Director of Sales and Marketing
Cook, Sara - Sales Manager
Craig, Jody - VP of Sales and Engineering
Currier, Christopher - Account Manager
Daniels, Connie - Customer Service
Dargan, Morgan - Sales Manager
Drummond, Doug - Director of Business Development
Durlacher, John - Sales Engineer
Eger, Ray - Account Manager
Elder, Mark - VP Sales
Eliscu, Kelly - Sales
Elleman, Joe - Sales Manager
Erdmann, Brad - Regional Sales Manager
Fenneman, Matt - VP of Sales and Marketing
Fergen, Chad - Sales Account Manager
Fergen, Chad - Sales
Ferrell, Rhonda - Sales Manager
Filbert, Lee - Senior Sales Executive
Fisher, Tim - Account Manager
Flockerzi, Gene - Director of Sales
Fresca, Daniele - Director of Marketing
Fry, Jacob - Quotation/Program Engineer
Geyne, Gabriel - Applications Engineer
Goodpasture, Jon - Sales
Grayczyk, Brian - VP Sales & Marketing
Grom, Steve - National Sales Manger
Harman, Dave - Director Sales & Marketing
Harringan, Steve - VP Sales
Healy, Jim - Sales Representative
Heer, Paul - VP Sales
Heineman, Lisa - Sales/Eng. Adm.
Herpin, Becky - Application Engineering Assistant
Hines, Skip - Account Manager
Holbrook, Bob - sales marketing manager
Hoskins, John - Dir. Sales and Marketing
Hulbert, Ron - Vice President Sales
Jones, Jen - Sales
Joseph, Glenn - Sales Manager
Keeler, John - Sales
Keeler, Joe - Advanced Sales Engineer
Kelly, John - Technical Sales / Business Development Specialist
Kessler, Dan - Marketing Manager
Khanna, Abby - Account Manager
Kleck, Chris - Sales
Krupa, Brad - Sales Manager
Kunkel, Jim - Sales/Engineering
Lang, Matt - Sales Manager
Larson, Tony - VP Sales and Marketing
Leffelman, Spencer - Sales & Marketing Coordinator
Lichfield, Jon - Sales Engineer
Long, Jason - Regional Manager - Robots & Automation
Marindin, Toby - Territory Manager
May, Jeremy - Account Manager
McMahon, Dan - Sales Manager
McTavish, Robert - Sr. Sales Executive
Mechery, Joseph - VP Sales
Medo, Jon - Account Executive
Menjivar, Rene - Program Manager
Mick, Ron - Assembly Supervisor
Miller, Chris - Sales & Marketing Administrator
Modrall, Steve - Senior Account Executive
Monahan, Matt - Sales & Marketing
Moyak, Tom - Sales Manager
Mulder, Jon - Business Development Leader
Mulvey, Leigh - Project Manager
Nichols, Mitch - VP of Sales and Marketing
Ochi, Terri - Sales Manager
Outman, Todd - VP Sales and Marketing
Page, John - Sales Manager
Palmisano, Robert - National Sales Manager
Papineau, John - Business Development Manager
Parker, Alan A. - Vice President - Sales
Peterson, Tim - Sales
Pizur, Chad - Sales Manager
Porter, Maria - Quality Assurance Manager
Preu, Heather - Senior Sales Executive
Price, Laura - Director of Sales
Proske, Matt - Vice President
Riesterer, Rick - Manager, Business Development
Ritthaler, Eric - Territory Sales Manager
Rodriguez, Manny - Sales
Roudebush, Dennis - Sales
Saddler, Scott - Marketing
Schneider, Jim - Sales Manager
Schroeder, Vince - Sales Engineer
Sederlund, Alan - Sales Manager
Seeley, Kent - VP of Sales and Marketing
Segrest, Robert - Business Development
Shelly , Stacy - Regional Sales Director
Sills, Bill - Director of Sales
Sloan, Jack - Vice President of Sales
Sloat, Scott - Chief Finanacial Officer
Smith, Marty - Sales
Sotos, Nick - President
Stainbrook, Barry - Sales Manager
Stiller, Chris - Sales and Marketing
Stolarski, Don - Sales / Engineering
Sweeney, Cary - SALES/Product Development
Torres, Brian - Director of Sales
Tredway, Tom - Director of Sales
Undem, Kevin - Sales Manager
Usuriello, Ruth - Business Development Manager
Vereecken, David - Sales Manager
Walling, Matthew - Sales
Walter, Mike - Product Manager
Weber, Art - Sales Manager
Williams, Kenton - Sales Associate
Winterbotham, Terry - Program Coordinator
Wood , Tom - VP Sales
Wuhrman, Tim - Sales Manager
Young, Trisha - Sales Engineer
Zavala, Lou - Sales Manager
Zellers, Don - Sales Manager
Ziegenhorn, Andy - Sales & Marketing
Ziegenhorn, Anne - New Business Developmt.
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