Worker protection laws are a bit different in China.
According to this report, a Chinese company forces its employees to eat raw eggs as punishment if their work does not meet expectations. When one intern complained, the HR Manager allegedly responded, “What law is preventing you from eating a raw egg?”
Even if the company’s motivational techniques could be challenged under Chinese labor law, Chinese legal experts caution that the intern is probably not the right person to complain. His unpaid internship apparently doesn’t make him an employee under Chinese law. And there it is: The age old question of Who Is My Employee? is a thing in China too.
Back in the U.S., we know that the employee vs. independent contractor question makes all the difference in whether several types of employment, tax, and benefits laws apply. But what about military leave law?
Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), employees are guaranteed reinstatement and other job protection rights after taking military leave. And employers must grant military leave when requested.
Do the same protections apply to independent contractors?
According to federal regulations, the answer is no — so long as the contractor is properly classified as a contractor.
Under USERRA, independent contractor status is evaluated using a Right to Control Test. The regulations say these six factors should be considered:
1. The extent of the employer’s right to control the manner in which the individual’s work is to be performed;
2. The opportunity for profit or loss that depends upon the individual’s managerial skill;
3. Any investment in equipment or materials required for the individual’s tasks, or his or her employment of helpers;
4. Whether the service the individual performs requires a special skill;
5. The permanence of the individual’s working relationship; and,
6. Whether the service the individual performs is an integral part of the employer’s business.
No single factor is controlling, but all are relevant for determining whether an individual is an employee or an independent contractor.
As with so many other laws, it’s not enough just to assume USERRA doesn’t apply because a worker is classified as an independent contractor. The workers has to be properly classified as an independent contractor, according to the test that applies to that particular law.
Getting it wrong means failure to comply with military leave law. That sounds unpatriotic and unfair. And it could leave you with egg on your face.
[Note to self for future blog post idea: Can you require independent contractors to eat raw eggs in the U.S.?]
© 2022 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.