What Role Does the EEOC Play in Independent Contractor Misclassification?

IMG_1081The EEOC’s jurisdiction is limited to claims brought under certain federal anti-discrimination laws. The reach of these laws, however, is limited to employees. It is not a violation of Title VII, for example, to discriminate against an independent contractor.

So the EEOC has nothing to do with issues of independent contracor misclassification, right? Wrong.

Because the EEOC’s jurisdiction is limited to claims brought by employees, the Commission is incentivized to reclassify independent contractors as employees — especially when the Commission thinks that a company’s conduct was untoward.

In October 2016, shortly before the election, the EEOC published its Strategic Enforcement Plan for 2017-21. Lo and behold (is it ever just “lo”?), Priority #3 is “Addressing Selected Emerging and Developing Issues,” among which the EEOC lists:

Clarifying the employment relationship and the application of workplace civil rights protections in light of the increasing complexity of employment relationships and structures, including temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy.

In other words, the EEOC wants a seat at the Independent Contractor Misclassification Table. It wants a chance to decide who is a contractor and who is an employee, because every chance to find misclassification is a chance to apply the laws that the Commission is charged with enforcing. No employment? No EEOC.

Am I cynical? You bet! But the EEOC has empirically interpreted its mission to include expanding employee protections. In this case, that means expanding who is an employee.

On January 25, 2017, President Trump named Commissioner Victoria A. Lipnic Acting Chair of the EEOC. She began her service as a Commissioner of the EEOC in April 2010, having been confirmed by the Senate for an initial term ending on July 1, 2015. In November 2015, she was confirmed by the Senate for a second term ending on July 1, 2020.

To date, there is no indication of any change in the Strategic Enforcement Plan for 2017-21.

Expect the EEOC to take a more active role in trying to determine who is an independent contractor and who is an employee.

© 2017 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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