According to this article in USA Today, state and local legislatures pass all kinds of strange laws. In Tennessee, you can’t hold office if you’ve been in a duel. In North Carolina, you can’t hold a meeting if you are dressed in costume. In Louisiana, it’s illegal to wrestle a bear.
Other times, legislatures pass laws that make sense, but they do it in a way that’s sloppy or lazy. A recent amendment passed by the D.C. Council falls into this second category.
Like many state and local anti-discrimination laws, the D.C. Human Rights Act prohibits discrimination and harassment in the workplace. An amendment to the Act, effective 10/1/2022, expanded the law’s protections to most independent contractors. Seems reasonable, right?
But the way the law extends these protections is lazy drafting, and the lazy drafting creates problems for those of us who are careful about preserving the distinctions between employees and independent contractors.
The amendment expands the Act’s coverage by changing the definition of “employee.” Under the amended text, the term “employee” now also includes individuals “working or seeking work as an independent contractor,” as well as unpaid interns. The amendment then excludes some independent contractors from coverage, explaining that an independent contractor for purposes of the Act “does not mean a service vendor who provides a discrete service to an individual customer.”
There are two problems here. First, starting at the end, what does the exception really mean? I presume the exception exists to carve out rideshare and delivery services, but if that’s what they meant, they should have said that. It’s unclear. Maybe some guidance will be issued later.
But the larger problem is the second one, and that’s what I want to focus on here. Instead of amending the law so that it applies to “employees and covered independent contractors,” the law lazily changes the definition of “employee” to say that “the term ‘employee’ includes … an individual working or seeking work as an ‘independent contractor.’”
But the word employee (as everyone commonly understands it) doesn’t include individuals working or seeking work as independent contractors. That’s the whole point of differentiating them by calling them independent contractors.
Let’s try an analogy. If you wanted to expand coverage for a law that applies to police officers so that the same protections applied to fire fighters, you wouldn’t redefine the term “police officers” to “include” fire fighters. You’d say the law applies to police officers and fire fighters.
The same principle applies in every day life. If you went to the ice cream store and ordered vanilla soft serve, you’d be unhappy if the clerk handed you a vanilla-chocolate twist. You’d complain, but the clerk would point you to the sign on the wall that says “We define vanilla to include chocolate.” That’s dumb and would never happen. I think. But I would check twice before ordering soft serve at the D.C. Council cafeteria.
Preserving independent contractor status is already complicated, with so many different state and local tests for determining who is an employee and who is a contractor. We don’t need lazy amendments that define the term “employee” in a way that just includes “independent contractors.” It makes everything more confusing for everyone, especially when it remains important to differentiate between contractors and employees in every other context.
We don’t even need to look beyond D.C. to see how the D.C. Council has messed this up. Let’s compare the amended Human Rights Act to other D.C. laws.
The D.C. unemployment compensation law uses a common law test to determine whether someone is an employee or an independent contractor. So does D.C. wage and hour law. The D.C. workers comp law uses a different “relative nature of work test,” but that’s a balancing test too. The point is, under these other D.C. laws, the term “employee” definitely does not include independent contractors, and there’s a way of differentiating which is which.
It’s laudable that the D.C. Council wants to extend anti-discrimination protections to independent contractors. Some state laws do that too. (Federal anti-discrimination laws do not.) But don’t lazily do it by calling independent contractors “employees.” Because they’re not.
At least in D.C. it’s still legal to wrestle a bear.
© 2022 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.