Sticks & Stones: What Not to Call Your Independent Contractors


“Sticks and stones can break my bones, but names will never hurt me.” Au contraire. That old adage may have rang true on the playground — or more likely, it probably got you beat up if you actually said it on the playground — but it does not ring true when speaking  about your independent contractors. Words matter. A lot.

Remember, any court or agency evaluating whether your independent contractor relationship is properly classified (and is not employment) will look to the facts. The facts include whether the parties refer to the relationship in ways that resemble employment. Avoid using terms that sound like employment.

Here are 14 things not to say about your independent contractors: Continue reading

Boom? Is the California Supreme Court About to Blow Up the Test for Independent Contractor Relationships?

california-independent-contractor-dynamex-boomThe California Supreme Court may be about to rewrite the test for Who Is My Employee? under California wage and hour law.

Independent contractor relationships that have stood the test of time may be in jeopardy.  And I don’t mean the (mildly?) entertaining Alex Trebek kind of Jeopardy. We’re talking real economic upheaval and uncertainty — worse than Schwarzenegger taking over Celebrity Apprentice.

Here’s the issue: Continue reading

Why Your Standard Agreements with Staffing Agencies Are Risky Business (Starring Tom Cruise)

broken-glass-joint-employment-agreementIt’s Valentine’s Day. You and your sweetie want to get away for the weekend. Your high school offspring will stay home. They seem responsible, promise not to break the law, and promise if they break anything they will pay for it. So you’re good, right?

Come on, wake up. Have you seen Risky Business? American Pie? House Party (very underrated movie, by the way)? Continue reading

Lessons from Bob Seger’s “Against the Wind”: 5 Clues Your Independent Contractor May Be Misclassified


The all-time best song lyric is Bob Seger’s “I wish I didn’t know now what I didn’t know then,” from Against the Wind. This is based on a comprehensive survey of 1 registered voter, but good enough.

Too many companies assume they don’t have an independent contractor misclassification problem because they have not yet been sued, audited, or investigated.

Remember how you could cover the eyes of small children and convince them you’ve disappeared? independent-contractor-misclassification-laughing-babyYou didn’t disappear, though, did you? (Or, did you?!!) This is a fun little game but bad risk management strategy.

The better strategy is Continue reading

Strippers Have No Class, Judge Rules

We’ve seen lots of exotic dancer cases lately (clarification for my wife: seen lots of cases, not dancers) where the dancers — apparently this is the preferred legal term for strippers — claim they have been misclassified as independent contractors.

employment-class-action-blogMany of these claims have succeeded, but here’s an unusual way to lose class action status. This judge refused to certify the proposed class because of lack of experience of counsel. Thanks to my colleague, Greg Mersol (experienced counsel), for this post. Class dismissed!

Unlikely Lessons in Legal History, Edition 1.
Why lawyers use the term “exotic dancer” instead of stripper:

Lawyer’s Wife:  Were you out cavorting with strippers again?

Lawyer:  No.

Four FMLA Traps When Using Temp Workers — and How to Avoid Them

The FMLA is full of traps for companies who use staffing agency workers, both for staff augmentation and temp-to-hire. Here are a few of the most common mistakes and how to avoid them:


 photo credit: ransomtech Chimney Bluffs State Park via photopin (license)

1. Mistake: Not counting staffing agency time as service time, when determining whether the worker has worked for 12 months.

Tip: Staffing agency time counts. Add staffing agency time plus regular employee time to determine whether the worker has 12 months of service time. Accumulate all time worked during the past seven years. Continue reading