In this post, we’ll set the bar low. Today’s theme is “Don’t say stupid [stuff].”

Those of you living outside Northeast Ohio may have missed this recent gem. During a city council meeting on whether to allow ice fishing at Hudson Springs Park, Hudson’s mayor opposed the proposal — on the grounds that ice fishing shanties might be used for prostitution.

“If you open this up to ice fishing, while on the surface it sounds good, then what happens next year? Does somebody come back and say, ‘I want an ice shanty in Hudson Springs Park for ‘X’ amount of time?’ And if you then allow ice fishing with shanties, then that leads to another problem. Prostitution.”

Don’t say stupid stuff. After being widely mocked, the mayor resigned a week later.

A similar rule of thumb applies when evaluating your independent contractor relationships.

It’s a great idea to look carefully at those relationships and to examine whether misclassification might exist. But be careful what you put in writing. Don’t write stupid stuff. Emails are a plaintiff’s lawyer’s best friend.

If you think your business might be misclassifying its contractors, you get a gold star for being proactive. (Congratulations! It will look great on your chart on the refrigerator.) But don’t express that opinion in an internal company email. Pick up the phone and call someone. Or better yet, get your legal counsel involved. Not only can you have privileged, non-discoverable email communications with counsel, you can also get helpful legal advice.

Email, IMs, DMs, texts, Slack, and Team chats are all discoverable in litigation. If your business gets sued for misclassifying contractors, you do not want a trove of emails from HR to the CFO saying, “I think we may be misclassifying our contractors” or “I saw Lebowitz’s blog, and I think our contractors are probably employees under the Right to Control test,” or “That California ABC test is a real killer. There’s no way we meet part B.”

Those are helpful thoughts — and you all know I always recommend being proactive about these things — but please, please, pick up the phone instead. Call your CFO. Call your company president. Call your lawyer. Don’t write it in a discoverable email or text or IM or chat. Don’t create evidence that will allow a plaintiff’s lawyer to say, “Not only was this business misclassifying its contractors, but they knew they were doing it. Just look at this email.”

Your good intentions in identifying a possible issue can be used against you. But be careful how you communicate that concern. Say it, don’t write it.

But don’t say it at a city council meeting.

© 2022 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.