Mitchell elected to Board of Directors of OBA Young Lawyers Division

oklahoma flag and gavel

Attorney Phoebe B. Mitchell will begin serving a two-year term as a Board Member At-Large for the Young Lawyers Division (YLD) of Oklahoma Bar Association when the organization’s year officially begins on Jan. 29.

Phoebe B. Mitchell is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

“I am looking forward to connecting with other young attorneys throughout the state,” Mitchell said.

Mitchell’s election follows OBA’s nomination process last summer and subsequent voting via ballot among all YLD members in the fall. Her “At-Large” designation indicates her role has jurisdiction in all Oklahoma districts and counties.

“I was drawn to apply because of YLD’s mission to foster camaraderie between young Oklahoma lawyers through community service-related projects,” Mitchell said. “I will enjoy getting to know other young attorneys outside of the Oklahoma City area who are like-minded and have similar personal and professional goals.”

All OBA members who are in good standing and were first admitted to practice law in the past 10 years are automatically designated YLD members.

Phillips Murrah Director C. Eric Davis formerly served on the OBA-YLD Board in the seat representing Oklahoma Supreme Court Judicial District No. 9, which covers most of Southwestern Oklahoma.

“I enjoyed serving, and I’m still friends with my fellow board members,” Davis said. “I also enjoyed spearheading service events in my home district. It was gratifying to bring together community-minded attorneys for a good cause.

“I’m happy Phoebe will have that opportunity. She’ll be a strong leader for the OBA.”

For more information about the Young Lawyers Division, visit OBA’s website.

OSHA Releases COVID-19 Vaccine Emergency Temporary Standard

Vaccine art graphic

By Phoebe B. Mitchell

The Occupational Safety and Health Administration released its highly anticipated Emergency Temporary Standard[1] (ETS) on November 4, 2021. The ETS requires employers with 100 or more employees to establish, implement and enforce a written mandatory COVID-19 vaccination policy. The Rule requires employers to:

  1. Establish, implement, and enforce a written mandatory vaccination policy;
  2. Determine the vaccination status of each employee and maintain a record of each employee’s vaccination status; and
  3. Provide support for employee vaccination, including paid time off.
Phoebe Mitchell portrait

Click to visit Phoebe B. Mitchell’s profile page.

Here are key points from the ETS:

  • Employers with 100 or more employees are covered.
    • As for counting employees toward the threshold, OSHA’s FAQs say this:

For a single corporate entity with multiple locations, all employees at all locations are counted for purposes of the 100-employee threshold for coverage under this ETS. In a traditional franchisor-franchisee relationship in which each franchise location is independently owned and operated, the franchisor and franchisees would be separate entities for coverage purposes, such that the franchisor would only count “corporate” employees, and each franchisee would only count employees of that individual franchise. In other situations, two or more related entities may be regarded as a single employer for OSH Act purposes if they handle safety matters as one company, in which case the employees of all entities making up the integrated single employer must be counted.

  • Covered employers must establish, implement and enforce
    • a written mandatory vaccination policy; or
    • a written policy allowing employees to choose either:
      • to be fully vaccinated
      • or provide proof of regular testing for COVID-19 and wear a face covering at work.

Each employee must provide acceptable proof of vaccination status to their employer, which the employer must keep and treat as other medical records.

  • Employers must provide up to 4 hours of paid time off to allow an employee to become vaccinated.
  • Where employers adopt a policy that allows employees to remain unvaccinated, the employer must:
    • ensure that unvaccinated employees comply with COVID-19 testing procedures; and
    • ensure that unvaccinated employees wear a face covering when indoors (with limited exceptions).
  • Testing for unvaccinated employees:
    • Employees who report to work at least once every 7 days must:
      • be tested at least once every 7 days; and
      • provide documentation of the most recent test result to their employer no later than the 7th day following the last test result.
    • Employees who do not report to work at least once every 7 days must:
      • be tested within 7 days prior to returning to the workplace; and
      • provide documentation of the test result to the employer upon return to the workplace.
  • Employers are not required to pay for employee testing or face coverings.
  • Remote workers (work from home or work exclusively outdoors) are exempt from the ETS.
  • Employers must comply with most provisions of the Rule by December 4, 2021.

Employers should consult with their employment counsel for additional guidance on addressing concerns regarding the ETS. Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients.

For more information on this alert and its impact on your business, please call 405.606.4711 or email Phoebe B. Mitchell.

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Phillips Murrah shares personal stories about tribal memberships

PIF KGOU OILS graphicPhillips Murrah celebrates Indigenous Peoples’ Day in recognition of the contributions of the Indigenous communities that have lived in the United States for thousands of years. To commemorate the occasion, Phillips Murrah is supporting Oklahoma Indian Legal Services as its Pay It Forward beneficiary for the month of October.

In addition, the Diversity, Equity, and Inclusion Committee invited members of the Phillips Murrah team who have Native American tribal affiliations to participate in a video interview to discuss what their ancestry and heritage mean to them.

Interviewees are Phillips Murrah Directors G. Calvin Sharpe and Kathy Terry; Associate Attorneys Phoebe Mitchell, Eric Davis and Molly Tipton; and Paralegal Donna Anderson.

Special thanks to Chickasaw classical composer Jerod Impichchaachaaha’ Tate for allowing us to feature his music in the video.

Please enjoy the video by clicking the player below.


Kayla Kuri, Phoebe Mitchell win NextGen Under 30 in Law

NextGen Under 30, which names top-performing Oklahomans under 30 years of age across various employment industries, has named Phillips Murrah attorneys Kayla M. Kuri and Phoebe B. Mitchell to its 2021 honorary list in the Law category. Phillips Murrah is one of two firms to have multiple winners in the category.

Kayla M. Kuri and Phoebe B. Mitchell

“It feels great to be recognized so early in my career and to know that other people in the community see value in my contributions,” Kuri said. “I didn’t grow up in Oklahoma, so when I moved here in 2014, I was unsure if I would ever truly feel like part of the community. But Oklahoma quickly became ‘home,’ and working for a firm as great as Phillips Murrah provides so many opportunities to get involved in the community and connect with others.

“I’m glad to know that other people in the community have taken notice of my work and felt like I was deserving of receiving this recognition.”

NextGen accepts nominations annually and seeks to highlight the accomplishments of individuals who are making a difference within their respective industries and who demonstrate talent, drive, and service to their communities.

“It’s an honor to be recognized for NextGen Under 30 going into my third year of practice at Phillips Murrah,” Mitchell said. “I feel fortunate to be at a law firm where I have so many mentors who truly want me to succeed both personally and professionally.

“Beginning with my clerkship at Phillips Murrah during the summer of 2018 and throughout my first two years of practice, I have felt supported and encouraged to by PM attorneys to do top notch legal work and become involved in our community.”

The Firm is proud to recognize Kuri and Mitchell are two of three women from Phillips Murrah to win this award in the last two years.

“I think the Firm’s culture plays a big part in the women here being successful and being recognized,” Kuri said. “One of the aspects that drew me to Phillips Murrah was the percentage of female attorneys, particularly in my practice group. You don’t often find big firms where over 50% of the attorneys are female, so I knew that Phillips Murrah would be a firm where diversity, equity and inclusion are valued.

“This is all evident in Phillips Murrah’s culture, which is what makes the firm so great. The support and mentorship of the Directors is unrivaled, and they help foster an environment where young attorneys like myself can succeed.”

In addition to striving to maintain a diverse workplace, the Firm is committed to creating a collaborative environment.

“The best part about working for a firm like Phillips Murrah is that we have attorneys in so many different practice areas,” Kuri said. “It really allows us to be a thorough resource for our clients.

“If a client I’m working with has an employment law issue, I know that I can go down the hall and get expert advice from one of our attorneys who practices in that area. Similarly, I get calls all the time from attorneys in other practice areas whose client needs assistance with a transaction or drafting a contract. The attorneys here are very collaborative and work together to provide the best counsel to our clients by utilizing our strengths in our respective practice areas.”

Read the full list of winners on NextGen’s website here.

Biden DOL Rescinds Trump Administration’s Joint Employer Rule

By Janet A. Hendrick and Phoebe B. Mitchell

On July 29, 2021, the Department of Labor (DOL) rescinded the Trump Administration’s joint employer rule under the Fair Labor Standards Act (FLSA). This pro-worker change makes it more likely that an employer will be considered a “joint employer” and liable for another employer’s actions under the FLSA.

portraits of attorneys Janet Hendrick and Phoebe Mitchell

Janet A. Hendrick and Phoebe B. Mitchell

In its press release, the DOL explained the importance of the joint employer rule: “Under the FLSA, an employee can have more than one employer for the work they perform. Joint employment applies when – for the purposes of minimum wage and overtime requirements – the department considers two separate companies to be a worker’s employer for the same work. For example, a joint employer relationship could occur where a hotel contracts with a staffing agency to provide cleaning staff, which the hotel directly controls. If the agency and the hotel are joint employers, they are both responsible for worker protections.”

Under the previous rule, the DOL would consider four factors to determine whether a company is a joint employer: whether the company (1) hires and fires the employee; (2) supervises and controls employees’ work schedules or conditions of employment to a substantial degree; (3) determines employees’ rate and method of payment; and (4) obtains employment records.

The DOL stated that this former rule “included a description of joint employment contrary to statutory language and Congressional intent.” The new rule states that rescinded rule “intertwined the horizontal joint employment provision with the vertical joint employment provisions,” while the new final rule asserts that horizontal and vertical joint employment are separate concepts.

Under the new rule, horizontal joint employment exists where an employee is separately employed by and works separate hours in a workweek for more than one employer, and the employers are “sufficiently associated with or related to each other with respect to the employee.”

joint employer rule graphic 2

Vertical joint employment exists where “an employee has an employment relationship with one employer (typically a staffing agency, subcontractor, labor provider, or other intermediary employer),” another employer is “receiving the benefit of the employee’s labor,” and “the economic realities show that the employee is economically dependent on, and thus employed by,” the other employer.

joint employer rule graphic 1

The new rule goes into effect on September 28, 2021.

Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients regarding the DOL’s new rules.

Janet Hendrick portrait

Janet Hendrick is a Shareholder and a member of the Firm’s Labor and Employment Practice Group.

For more information on this alert and its impact on your business, please call 469.485.7334 or email me.

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Firm sponsors Make-A-Wish Pickleball Tournament

Phillips Murrah is sponsoring Make-A-Wish Foundation‘s inaugural Pickle N Wishes Pickleball Tournament on May 2.

make a wish foundation logoThe tournament will be hosted by Make-A-Wish Oklahoma’s Wish Young Professionals Council of Oklahoma City, of which Attorney Phoebe B. Mitchell serves on the Board of Directors.

“I have really enjoyed serving on the Make-A-Wish Young Professionals board,” Mitchell said. “Make-A-Wish is a very special organization whose mission is to create life-changing wishes for children with critical illnesses.

“Funds raised through Make-A-Wish go directly to giving children fighting serious illnesses their own personal experience of a lifetime. When a child’s wish is granted, it gives them hope, strength, and happiness during what can be the most difficult time for the child and their family. Make-A-Wish is important to me because I love to see our community give back to one of its most needy populations—children fighting life-threatening illnesses.”

Mitchell was recently recognized by Make-A-Wish Oklahoma as their Volunteer Rookie of the Month for March.

The event will be hosted in Oklahoma City at Chicken N Pickle, 8400 N Oklahoma Ave, and registration is still open on Make-A-Wish’s website here.

USDOL seeks to overturn two proposed FLSA rules: Independent Contractor Rule and Joint Employer Rule

USDOL header employee classification graphicBy Byrona J. Maule and Phoebe B. Mitchell

In January, the United States Department of Labor (DOL) issued a notice of proposed rulemaking regarding the classification of independent contractors. Now, just months into President Biden’s term, his administration seeks to overturn both this proposed rule and the DOL’s final rule regarding joint employers.

Independent Contractor

The proposed independent contractor rule, discussed at length here, significantly changed the legal analysis involved for employers deciding how to classify their employees. In stating its intention to rescind the new independent contractor rule, the DOL stated that the new “economic reality test,” which is not used by courts or the department, is not supported by longstanding case law or the text of the Fair Labor Standards Act (FLSA). Further, the DOL commented that the new rule minimizes the traditional factors utilized by courts in classifying workers, making it less likely to establish that a worker is an employee under the FLSA. Worker classification is an important issue for employers as it determines which workers are entitled to benefits and the overtime protections under the FLSA.

The DOL did not provide guidance on a replacement for the proposed rule. President Biden has stated his support for a uniform independent contractor test modeled after California’s “ABC” test. The “ABC” test considers a worker to be an employee unless their employer establishes all three of the following:

  1. The worker is free from control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of such work and in fact;
  2. The worker performs work that is outside of the “usual course” of the hiring entity’s business; and
  3. The worker is customarily engaged in an independently established trade, occupation or business of the same nature as the type of work performed for the company.

Joint Employer

The DOL’s joint employer rule clarified an employee’s joint employer status, such as when an employee performs work for his or her employer that simultaneously benefits another individual or entity. The rule, which took effect on March 16, 2020, was subsequently challenged by 17 states and the District of Columbia in a lawsuit filed in the Southern District of New York. The lawsuit claimed that the new joint employer rule violated the Administrative Procedure Act. The Southern District of New York agreed, holding that the new rule was contrary to the FLSA.

The March 16, 2020 final rule included several elements that were not consistent with the DOL’s prior joint employer rule, including:

  • a four-factor balancing test to determine when a person is acting directly or indirectly in the interest of an employer in relation to the employee;
  • a provision that an employee’s economic dependence on a potential joint employer does not determine whether it is a joint employer; and
  • a provision that an employer’s franchisor, brand and supply, or similar business model and certain contractual agreements or business practices do not make joint employer status under the FSLA more or less likely.

Jessica Looman, the DOL Wage and Hour Division Principal Deputy Administrator stated that “The Wage and Hour Division’s mission is to protect and respect the rights of workers. Rescinding these rules would strengthen protections for workers, including essential front-line workers who have done so much during these challenging times.”

The DOL is seeking public input until April 12, 2021 on its proposal to rescind these two rules.

Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients regarding the DOL’s new rules.

Portrait of Byrona J. Maule

Click to visit Byrona J. Maule’s profile page.

For more information on this Employment Alert and its impact on your business, please call 405.552.2453 or email me.

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Employers should prepare for COVID-19 vaccine in the workplace

By Phoebe B. Mitchell

On December 11, 2020, the United States Food and Drug Administration (FDA) issued its first emergency use authorization (EUA) for the COVID-19 vaccine, which allows Pfizer-BioNTech, the manufacturer of the vaccine, to distribute the vaccine throughout the United States. This encouraging step for the United States in its fight against COVID-19 also raises several important questions for employers as the vaccine becomes more broadly available.

Covid vaccine imageWhile we wait for both full FDA approval and the United States Equal Employment Opportunity Commission’s (EEOC) anticipated employer guidance on the vaccine, we recommend that employers prepare now to address the legal issues that arise when the vaccine is accessible to the American workforce.

May Employers Mandate the COVID-19 Vaccine as a Condition of Employment?

Even though the EEOC has not yet issued formal guidance, the EEOC has stated that an employee who has COVID-19 or symptoms of COVID-19 poses a “direct threat” to the health and safety of the workplace. This means that a person with COVID-19 or symptoms of COVID-19 poses a significant risk of substantial harm to himself or others. The EEOC continues to use this standard to allow employers to exclude employees who have contracted COVID-19 or who are showing symptoms of COVID-19 from the workplace.

Until the FDA fully approves the COVID-19 vaccine, and the EEOC issues formal guidance regarding the vaccine in the workplace, employers should strongly encourage, rather than require, their employees to take the COVID-19 vaccine. After full FDA approval and guidance from the EEOC, we expect employers will be able to mandate that their employees take the COVID-19 vaccine as a condition of employment, subject to possible exceptions under the Americans with Disabilities Act and Title VII. In fact, mandatory flu vaccines are already common in the health care field, and many health care employers require their employees to take the flu shot each year or forfeit employment.

What Happens When An Employee Refuses the COVID-19 Vaccine?

If an employer requires the COVID-19 vaccine for all its employees, there are situations in which an employee’s refusal will require additional analysis to determine if the employee should be exempted from the mandate, including (1) where the refusing employee is a qualified individual with a disability, as defined by the Americans with Disabilities Act (ADA), (2) where the employee’s refusal is due to their sincerely held religious belief, and (3) where the refusing individual is subject to a collective bargaining agreement.

First, qualified employees under the ADA whose disability puts them at higher risk for an adverse reaction to the vaccine may be able to refuse the COVID-19 vaccine as a reasonable accommodation.  If an employee requests a reasonable accommodation in the form of refusing to take the COVID-19 vaccine, the ADA requires an employer engage in the interactive process with the employee to determine if the requested accommodation is reasonable and/or creates undue hardship on the employer. Because the EEOC has made clear that COVID-19 meets its “direct threat” standard, it is possible that, even with a qualified disability under the ADA, an employee cannot safely perform his or her job without the COVID-19 vaccine. Thus, COVID-19’s classification as a “direct threat” will unquestionably impact the interactive process for reasonable accommodations.

Next, under Title VII of the Civil Rights Act of 1964, which protects employees from religious discrimination, an employee may refuse to take the COVID-19 vaccine based on a sincerely held religious belief. The sincerely held belief must be religious, rather than political or philosophical. An employer who receives a request from an employee to refuse the vaccine based on religious reasons has the right to inquire further to determine whether the belief is truly a sincerely held religious belief. Even where an employee refuses a vaccine based on a sincerely held religious belief, courts recognize that an employer may lawfully refuse such an accommodation where it would cause the employer an undue hardship. For example,  courts have held that the spread of influenza, which could be caused by an employee’s failure to take the flu shot, constitutes a safety risk to a health care employer’s workforce and patients, thus posing an “undue hardship” on the health care employer. As a result of this reasoning, employers in fields where transmission of COVID-19 is highly likely may be able to terminate an employee for refusing to take the COVID-19 vaccine, even if the refusal is based in a sincerely held religious belief.

Lastly, if an employee is a party to a collective bargaining agreement, the employer should negotiate the mandatory vaccination provision with the employee’s union. Incorporation of the employer’s vaccination policy into the CBA will help ensure compliance and could avoid disputes.

May an Employer Terminate an Employee Who Refuses the Vaccine?

In order to terminate an employee who refuses the COVID-19 vaccine, an employer must have a uniformly applied policy regarding its mandate of the COVID-19 vaccine as a condition of employment. Thus, under a uniformly applied policy, employers may lawfully terminate an employee who has not requested a reasonable accommodation on the basis of a disability, refused on the basis of a sincerely held religious belief or who is not subject to a collective bargaining agreement for refusing the COVID-19 vaccine.  But as discussed above, even termination of an employee who requests accommodation because of a disability or religious belief may be lawful depending on the circumstances.  Employers should remember the importance of individually analyzing each situation.

Who Pays for a Mandated COVID-19 Vaccine?

If an employer mandates that its employees take the COVID-19 vaccine as a condition of employment, it is a best practice, and in the employer’s best interest, for the employer to pay the cost of the vaccine.

As always, it is imperative that employers uniformly apply policies to all employees. This information is subject to change based on further guidance regarding the COVID-19 vaccine in the workplace. Employers should consult with their employment counsel for additional guidance on addressing concerns about the COVID-19 vaccine in the workplace. Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients.

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For more information on this alert and its impact on your business, please call 405.606.4711 or email me.

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COVID-19 Update: Okla. Gov. Stitt issues new restrictions, U.S. DOL updates face mask FAQs

By Phoebe Mitchell and Martin Lopez III

COVID-19 Update: Oklahoma Governor Kevin Stitt Issues New Restrictions

Against the backdrop of surging numbers of COVID-19 cases in Oklahoma, Governor Stitt recently announced the Seventh Amended Executive Order 2020-20. In addition to the protective measures afforded by the previous iterations of the Executive Order, this newest version adds restrictions to restaurants and bars and institutes a mask mandate for those in government-owned buildings.

Face Coverings at WorkEffective November 17, 2020, restaurants and bars across the state of Oklahoma are required to institute proper social distancing measures. Specifically, restaurants and bars are now required to ensure a minimum of six (6) feet of separation between parties or groups at different tables, booths, or bar tops, unless the tables are separated by properly sanitized glass or plexiglass. In addition, Effective November 19, 2020, food or beverages of any kind shall not be sold, dispensed, or served for on-premises consumption after 11:00 p.m. daily. This new restriction does not affect a restaurant’s ability to operate via drive-thru windows or by curbside pickup after the 11:00 p.m. cutoff. Sales and service of food and non-alcoholic beverages may resume at 5:00 a.m. the next day, and the sale and service of alcoholic beverages for on-premises consumption may resume at 8:00am.

Effective November 17, 2020, all persons on property owned or leased by the State of Oklahoma—including both state employees and visitors to the property—are required to wear a mask or similar facial covering. Notable exceptions to this mask mandate are children under the age of ten (10), when a person is alone in an enclosed space, when an individual has a bona fide religious objections to wearing a mask or facial covering, and when an individual is eating or drinking.

U.S. Department of Labor Updates Frequently Asked Questions Regarding Cloth Face Coverings at Work

On the heels of the Centers for Disease Control and Prevention’s (CDC) recently issued scientific brief regarding the use of cloth masks to control the spread of COVID-19, the United States Department of Labor (DOL) updated its Frequently Asked Questions regarding the same issue.

The CDC’s scientific brief states that masks are principally intended to reduce the spread of the virus from asymptomatic or presymptomatic infected wearers who may not know they can infect others with COVID-19. This type of protection is called “source control.” Additionally, masks help to reduce inhalation of the virus by the wearer, protection dubbed “filtration for personal protection.” Thus, based on these findings, the CDC recommends community use of non-valved multi-layer cloth masks.

Even still, the Occupational Safety and Health Administration (OSHA) stated that “not enough information is available to determine whether a particular cloth face covering provides sufficient protection from the hazard of COVID-19 to be personal protective equipment (PPE) under OSHA’s standard.” Thus, at this time, OSHA does not consider cloth face coverings to be PPE. OSHA’s update is consistent with the CDC’s scientific brief, which states more research is needed to ascertain the exact protective effects of cloth masks.

OSHA still strongly encourages employees to wear face coverings at work, especially when in close contact with others, in order to reduce the spread of COVID-19.

For more information on this alert and its impact on your business, please call:

Phoebe Mitchell is an Associate in the Oklahoma City office of the firm. (click name for profile page) Contact her by phone, 405.606.4711, or by email.

Martin Lopez III is an Associate in the Oklahoma City office of the firm. (click name for profile page) Contact him by phone, 4405.552.2418, or by email.

Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients during the current COVID-19 pandemic. Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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Employee or independent contractor? Department of Labor issues new proposed “Five-Factor Test”

By Phoebe B. Mitchell

In the past several years, employers have struggled to determine whether some workers should be classified as employees or as independent contractors. The difference is significant, as employees are entitled to many benefits that independent contractors are not, including overtime for those not exempt under the federal Fair Labor Standards Act (FLSA). As a result, worker misclassification is a costly mistake employers want to avoid.

DOL proposal contracting

U.S. Department of Labor proposes new rules on who is considered an employee and who is considered an independent contractor.

This week, the United States Department of Labor (DOL) issued its anticipated proposed rule regarding classification of workers as independent contractors. According to Secretary of Labor Eugene Scalia, the proposed rule will “make it easier to identify employees covered by the [FLSA], while respecting the decision other workers make to pursue the freedom and entrepreneurialism associated with being an independent contractor.” DOL is accepting comments on the proposed rule for 30 days.

The new rule includes a five-factor test that considers the “economic reality” of the relationship between workers and their employers.

Among the five factors, the DOL made clear that two “core” factors are key:

  1. Control a worker has over their work
  2. The worker’s potential for profit or loss

Both factors help determine if a worker is economically dependent on someone else’s business, or alternatively, if the worker is in business for him or herself.

The nature and degree of the individual’s control over the work

This first core factor examines a worker’s ability to personally control his or her work. For example, a worker is an independent contractor if the worker, as opposed to the company, exercises substantial control over key aspects of performance of work.  A worker exercises substantial control over performance of work by setting his or her own schedule or selecting his or her own projects. Further, the worker exercises substantial control over key aspects of performance of work if the worker has the ability to do work for other employers, including the employer’s competitors.

On the other hand, a worker is properly classified as an employee if the employer, as opposed to the worker, exercises substantial control over key aspects of the performance of the work. For example, if the employer controls the worker’s schedule or workload, or directly or indirectly requires the worker to work exclusively for the employer, the worker should be classified as an employee.

The individual’s opportunity for profit or loss

This second core factor examines a worker’s personal opportunity for profit or loss. If the worker’s profit or loss opportunity is closely tethered to the work he or she performs, the worker is likely an independent contractor. In other words, a worker is a true independent contractor if the individual has the opportunity to earn profits or incur losses based on his or her own exercise of initiative, or management of his or her investment in helpers, equipment, or material to further the work.

Alternatively, an employee does not have as much personal opportunity for profit or loss. A worker who is unable to affect his or her earnings or is only able to do so by working more hours or more efficiently is properly classified as an employee.

Three other factors

The proposed rule includes three other factors:

  1. The amount of skill required for the work
  2. The degree of permanence of the working relationship between the worker and the potential employer
  3. Whether the work is part of an integrated unit of production.

For example, if a worker has specialized training that the employer does not provide, and the work relationship is by design definite in duration, the worker should be classified as an independent contractor. On the other hand, an employee depends on the employer to equip him or her with the skills or training necessary to perform the job, the work relationship is, by design, indefinite in duration or continuous, and the worker’s work is a component of the employer’s integrated production process for a good or a service. Lastly, the actual practice of an employer is more relevant than what may be contractually or theoretically possible in determining a worker’s classification as either an independent contractor or employee.

While these three factors are important, according to DOL, if the two “core” factors point to the same finding, “their combined weight is substantially likely to outweigh the combined weight of the other factors that may point toward the opposite classification.”

The complete proposed rule is available at:

Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients regarding the DOL’s new rules.

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For more information on this alert and its impact on your business, please call 405.606.4711 or email me.

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Attorneys continue winning streak at annual OCBA Chili Cook-off

Phillips Murrah attorneys team up for OCBA’s annual chili cookoff

Another year, another recipe vying for a coveted trophy at the Oklahoma County Bar Association’s annual Chili Cook-off.

Phillips Murrah attorneys competed against local law firms in OCBA’s Young Lawyers Division on Feb. 28 at the Leadership Square Atrium in downtown Oklahoma City.

Representing Phillips Murrah were attorneys Cody J. CooperC. Eric DavisMark E. Hornbeek, Kara K. Laster, Martin J. Lopez III, Phoebe B. Mitchell, Ashley M. Schovanec, and Molly E. Tipton.

“I always love participating in the chili cook-off, not just because I am a very competitive person (and not a sore loser at all),” Tipton said. “I always find myself making new acquaintances that I look forward to seeing again in the court house or out and about!”

Attorney Phoebe Mitchell poses with her prize-winning chili and “Hottest Chili” trophy

The Firm’s team continued their winning streak, scoring the “Hottest Chili” prize with Mitchell’s recipe.

“The secret ingredient to my chili was definitely the spicy Mexican chocolate,” she said. “We had so much fun participating in the OCBA YLD chili cook-off. It is always great to come together and compete to raise money for a worthy cause like the Regional Food Bank.”

Phillips Murrah has had at least one team compete in the Chili Cook-Off each year since it first started more than ten years ago.

In 2019, the OCBA YLD named Phillips Murrah “Friend of the YLD” for the Firm’s consistent support of their charitable efforts.

To learn more about the YLD, visit OCBA’s website here.

See more: Phillips Murrah’s Commitment to the Community

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Phillips Murrah welcomes two new attorneys to legal team

Phillips Murrah is proud to welcome Justin G. Bates and Phoebe B. Mitchell to our Firm.

Justin G. Bates is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

Phillips Murrah welcomed Justin and Phoebe to the Firm’s Litigation Practice Group as associate attorneys. Each represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

Justin attended the University of Oklahoma College of Law where he earned American Jurisprudence Awards for Civil Procedure II and Torts. He served as a member of the American Indian Law Review and was a member of the Phi Delta Phi Legal Honor Society. Justin also had the privilege of arguing in the final rounds of both the 2017 1L moot court competition and the 2018 Calvert Competition before an esteemed panel of Oklahoma justices.

Justin was born and raised in the metro area, where he currently lives. In his free time, he enjoys traveling, watching college football, discussing what could have been for the Oklahoma City Thunder, and spending time with friends and family.

Phoebe attended the University of Oklahoma College of Law where she earned the American Jurisprudence award for Civil Procedure II and was on the Dean’s Honor Roll.

Phoebe B. Mitchell is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

She served as the Research Editor and Candidate Mentor on the Oklahoma Law Review and was a member of the Phi Delta Phi Legal Honor Society. Phoebe also served as a mentor on the Dean’s Leadership Council, was selected as a Dean’s Leadership Fellow, and was selected to serve on the Academic Appeals Board.

While in law school, Phoebe had the opportunity to clerk as a judicial intern for the Honorable Judge Rob Hudson of the Oklahoma Court of Criminal Appeals.

Phoebe was born and raised in Oklahoma City and received a Bachelor’s Degree from Vanderbilt University in Nashville, Tennessee. She enjoys Thunder basketball, OU football and cheering on her Vanderbilt Commodores in her spare time.