Using Independent Contractors Saved This Hospital an Arm and a Leg! (Really, Just a Leg)

leg broken independent contractor vs employee liabilityToday we attempt to answer a medical mystery: If I have to get my leg amputated because a doctor misdiagnosed me at the hospital, can I sue the hospital for malpractice?

Seems like an easy “yes,” right? Not so fast.

Suppose the doctor was an independent contractor, and suppose the hospital is a public institution. Those were the facts presented to the Supreme Court of Wyoming in a recent case (which also serves as a nice reminder that if you are admitted to the hospital with numbness and cramping in the legs and an “inability to walk,” it would be a good idea to get a vascular consult — assuming you want to keep your leg).

The Wyoming Supreme Court had to interpret a state statute that limited the liability of public hospitals to acts by its employees, except if a hospital extended its liability on purpose through an insurance policy. The hospital here had an insurance policy, but the policy did not reference coverage for acts by independent contractors.

The Court ruled that because the negligence (correction: alleged) “alleged” negligence was by a doctor who was seeing hospital patients as an independent contractor, the hospital was immune from liability for any negligence by the doctor.

Our fearless hero, the amputee, would have to sue the doctor instead. He could not sue the hospital. The case does not address how much malpractice insurance the doctor had, but I would bet my unamputated left leg that it was quite a bit less coverage than the hospital had.

The facts in this case are fairly specific, so I wouldn’t draw a lot of generalizations here. The case required the interpretation of a Wyoming statute and a specific insurance contract.

The case does serve as a reminder, though, of one of the many benefits of having work performed by legitimate independent contractors. The hospital would have been subject to liability if the doctor was an employee, but it faced no liability because the doctor was an independent contractor.

The key to victory, of course, is having a legitimate independent contractor relationship. As we have discussed many times in this blog, there are often disputes over whether a so-called independent contractor is properly classified or should really be considered an employee.

Courts will look to the facts of the relationship to determine Who Is My Employee? and will not just rely on what the parties call the relationship or the fact that a 1099 was issued instead of a W-2.

Depending on which law is being applied, the test for Independent Contractor vs. Employee may be a Right to Control Test, an Economic Realities Test, an ABC Test, or some other hybrid or variation. It’s important to understand whether your independent contractor relationships would hold up to scrutiny, and it’s important to conduct that review before you get sued.

Proper classification in this case meant the difference between zero liability and having to pay the going rate for an amputated leg.

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

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Don’t Wear Pajamas to Work: Be Careful Using “Statutory Minimum” Workers Comp Clauses in Subcontractor Agreements

Pajamas - Independent Contractor Agreements and Workers Compensation ClausesHave you ever had the dream where you show up at work or school in your pajamas or underwear? You’re exposed and embarrassed in the dream, and you can’t figure out why you forgot to put on regular clothes, right? (Please don’t tell me I’m the only one who’s had this dream. Please?)

You may be living this dream inadvertently in your vendor or subcontractor agreements. (And this is not what people mean when they say, “I’m living the dream!”)

Here’s the problem:

It’s commonplace in vendor and subcontractor agreements to include a section requiring insurance. You might require $1 million in commercial liability coverage, for example. Insurance clauses usually (and should) require the vendor or subcontractor to carry workers’ compensation coverage too. But sometimes these clauses are written in a way that may leave you exposed. Here’s an example:

“Subcontractor agrees to provide workers’ compensation coverage to its workers in the minimum amount required by law.”

You’re good, right? Depends on the state — and the circumstances.

The “minimum amount required by law” may be none.

First, if the worker retained by your vendor or subcontractor is its independent contractor (and not its employee), then there is probably no coverage required at all. State laws impose standards for determining Independent Contractor vs. Employee, but usually there is no requirement to provide any coverage to a true independent contractor.

Second, even if the worker is your vendor’s employee, the “minimum amount required by law” in the state might be none:

In Texas, for example, workers’ compensation coverage is generally optional. The minimum amount required by law is none.

Several states do not require employers to carry coverage unless they have a minimum number of employees. According to this chart from the National Federation of Independent Businesses (NFIB), an advocacy organization for small businesses, the following states require employers to provide workers’ compensation coverage only if they have at least this number of employees:

VA – required if 2 or more
GA, NC, WI – required if 3 or more
RI, SC – required if 4 or more
MS, MO – required if 5 or more

Some states have different requirements for construction and non-construction businesses:

NM – construction: required if 1 or more; non-construction: required if 3 or more
FL – construction: required if 1 or more; non-construction: required if 4 or more
TN – construction: required if 1 or more; non-construction: required if 5 or more

In some states, such as Ohio and New York, workers’ compensation might not be required for sole proprietors who have no employees other than themselves.

So what does all this mean for your agreements?

1. Depending on how your contract is written, you might be wearing pajamas to work. In other words, your agreement might leave you exposed, inadvertently, since the minimum amount of required workers’ compensation coverage for your vendor or subcontractor’s employees might be “none.”

2. Please don’t rely on the thresholds I have listed above. I have not examined the workers’ compensation laws state-by-state and I am merely listing state law summaries from the web. I have not checked these for accuracy. Check the laws in your state and check with legal counsel.

The point here is that the state-minimum required amount of coverage might be “none.” Things can go south for your business in a hurry if your vendor or subcontractor has insufficient coverage. If one of their workers is severely injured, the worker may bring a lawsuit against your business as an alleged joint employer. If the injury is severe enough and there is no workers’ compensation coverage, liability could be in the millions.

Keep this risk in mind when drafting the insurance sections of your vendor and subcontractor agreements. Draft carefully, and be sure you are fully covered.

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

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Would You Like Some Pepperoni with Your (Oops) Joint Employment?

Joint employment pizza 31E83EC5-E554-428A-A5D6-37F13905C3B9According to pizza.com, “There are approximately 61,269 pizzerias in the United States.” That number seems pretty precise to me, not an approximation, but who am I to question something I read on the internet?

Approximately 4 of the 61,269 pizzerias are owned by a New Yorker named Paola P., who runs each of the 4 under a different LLC. Paola’s employees can be assigned to any of the 4 pizzerias on their workdays. Seems boring so far, but stay with me. Now say this three times fast:

Paola’s practice prompted problems since Paola P’s pizzerias were impermissibly positioning personnel to prevent paying overtime. 

Pity.

Workers were being assigned to work roughly 50 hours a week, but they would work at two or three locations, less than 40 hours at each site. They received paychecks from the various LLCs (remember, each pizzeria was run as a separate company), which by itself is ok, but Paola’s mistake was that she failed to aggregate the hours from the 4 locations and failed to pay overtime when any individual exceeded 40 hours of total work.

Because the pizzerias shared ownership, management, and commingled employees, the workers were considered joint employees of the four companies. For those keeping score at home, that’s what we call “horizontal joint employment.”

Paola’s companies were liable for failure to pay overtime to each worker in any week when an employee worked more than 40 hours in the aggregate, even if no worker reached 40 hours at any individual location.

A federal court determined that the violation was flagrant and imposed the three-year statute of limitations, instead of the ordinary two-year statute.

This was a $360,000 mistake, half of which was for liquidated (double) damages.

According to our friends at Guinness, the world’s most expensive pizza can be ordered for $2,700 at Industry Kitchen in New York. This magical pie contains stilton (it’s a cheese, I had to look it up too), foie gras, caviar, truffle, and 24K gold leaves. Paola could have ordered 133 of these and still had some money left for dessert.

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

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Beware of Sinkholes When Running Background Checks on Independent Contractors

Sinkholes are terrifying. One minute you’re slowly and cautiously riding along a city street. Then the road buckles and disappears. I feel bad for this guy in the video!

A similar danger may lurk for businesses who perform background checks on independent contractors. You proceed cautiously, following the various legal requirements, then – BAM! – someone claims that by following those requirements, you’re treating the contractor like an employee. Whaaaaat?

Background check laws are full of technicalities and traps for the unwary. For pre-employment background checks, the federal Fair Credit Reporting Act (FCRA) requires:

  • a stand-alone disclosure form, disclosing that a background check may be run,
  • consent, and
  • pre- and post-adverse action notices (if adverse action may be taken).

Several states and localities impose additional requirements on pre-employment background checks.

Many of the more technical background check requirements, however, apply only to employees. For example, your stand-alone disclosure forms for pre-employment background checks almost certainly disclose that a background check may be performed “for employment purposes.” That language comes from the Act. Check your forms. It’s in there for pre-employment background checks (or it should be).

But what if you give that same form to an independent contractor?

The form says the background check is being performed “for employment purposes.” Is that phrase evidence that your business is treating the worker as an employee?

Not necessarily, but why open yourself up to that argument?

I say, “not necessarily” because the Federal Trade Commission (FTC) has issued guidance saying that the “for employment purposes” language can be applied to independent contractors. See here, page 32. It would probably be reasonable for a business to rely on the FTC guidance. Using the “for employment purposes” forms should not, therefore, be considered evidence that the contractor is being treated like an employee.

But why even open that door? If I’m defending against a claim of independent contractor misclassification, I’d prefer not to have to explain that away.

An alternative approach is to add language to the background check disclosure form being used for independent contractors, indicating that a background check may be run for employment purposes “or for purposes of retention as an independent contractor.” Or use a separate set of forms for independent contractors.

Following the pre-employment background check requirements seems prudent but, like a sinkhole, may cause unexpected troubles. Proceed with caution. And don’t fall off your scooter.

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

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Can Independent Contractor Misclassification Automatically Violate Federal Labor Law? (Hint: Yes)

The past two weekends, we have seen NFL players link arms in solidarity. They protest mistreatment and injustice in society, not mistreatment and injustice by their employers. In fact, there have been several instances where owners and coaches have joined in.

Had the players been protesting actions by their employers — their teams — their actions likely would be considered “protected concerted activity” under the National Labor Relations Act (NLRA). The NLRA grants employees the right to act collectively to protest terms or conditions of their employment. Employees have these rights even if there is no union.

NLRA rights apply only to employees, not to independent contractors. Independent contractors have no right under the NLRA to engage in collective behavior. In fact, antitrust laws can sometimes prohibit independent contractors from acting collectively — such as in price fixing.

So let’s get to the issue that is the focus of this blog — the issue of Independent Contractor vs. Employee.

Here’s the question of the day:

If independent contractors have no rights under the NLRA but employees do, can the mere act of misclassifying independent contractors be considered a denial of NLRA rights? 

Yes, said an Administrative Law Judge in a recent case involving couriers.

Here’s the judge’s reasoning: Employees have NLRA rights, allowing them to act collectively. An employer violates the NLRA by denying an employee the right to act collectively. Protected concerted activity can include discussing wages with co-workers, discussing discipline, speaking out against a supervisor, criticizing work conditions, and a broad range of other activities (many of which you probably never thought were protected).

Independent contractors do not have these rights because the NLRA applies only to employees. By misclassifying a worker as a contractor, the judge ruled, a business is essentially telling the worker — who is actually an employee — that he has none of these rights.

Telling an employee that he has no right to engage in protected concerted activity is pretty clearly a violation of the NLRA.

And there you go.

So what does that mean for businesses that use independent contractors? In other posts, we have discussed many of the negative consequences of independent contractor misclassification. A business that has misclassified workers as independent contractors (when they should really be deemed employees) can be liable for failure to pay employment taxes, failure to provide workers’ compensation and unemployment coverage, failure to follow hiring and paycheck laws, failure to provide employee benefits, and more.

Now add to that list a possible automatic violation of the National Labor Relations Act — at least according to this judge.

You can’t see me, but I am kneeling in protest.

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

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Subcontractors Can Be Jointly Liable for Contractors’ Labor Law Violations

Otter: “He can’t do that to our pledges.”

Boon: “Only we can do that to our pledges.”

–Animal House, 1978

Subcontractors are like pledges in a way. They have to abide by the rules that apply to the primary contractor. If they fail to do so, they are responsible. Fairness isn’t really the issue.

A recent case shows how subcontractors can be held responsible when a primary contractor improperly fails to bargain with a union. In 2014, a contractor won a bid to take over a Job Corps Youth Training Center. The Center had been a union facility, and the contract was set to expire right around the same time the contractor took over operations. The contractor brought in a subcontractor, MJLM, to handle wellness, recreation,

The contractor initiated a new hire process, and some union employees were rehired while others were not. The contractor imposed new terms and conditions of employment, disregarding the progressive discipline and other procedures that had been negotiated into the prior union contract.

The union filed an unfair labor practice charge with the NLRB, alleging that the contractor engaged in various unfair labor practices, including making unilateral changes to terms of employment without bargaining and improperly discharging various union employees. The Board’s General Counsel amended the complaint to allege that MJLM was equally responsible for any violations as a joint employer.

MJLM fought back, claiming that it was along for the ride, but the NLRB — and ultimately the Fifth Circuit Court of Appeals — found otherwise. The Board and the Court found that MJLM was a joint employer because it was involved in the hiring process, had influence over wages, assisted in setting holiday schedules, and helped to operate the center.

MJLM, as a subcontractor, was found to be a joint employer and therefore equally responsible for any unfair labor practices committed by the contractor.

When I read the case, I assumed the case was decided under the controversial new Browning-Ferris standard that allows for a finding of joint employment if there was merely indirect control. I was wrong. The Board (and Court) ruled that even under the old standard requiring direct exercise of control, the subcontractor was a joint employer.

Businesses should remember that joint employment can result in liability for violations by others. A subcontractor can be held responsible for unfair labor practices by a contractor. In this case, both the contractor and subcontractor were required to recognize the union, undo their unilaterally imposed practices, commence bargaining, and reinstate and make whole the employees who were not rehired.

MJLM was just as responsible as the contractor. To paraphrase the Court’s decision, with apologies to Dean Wormer, “The time has come for someone to put his foot down, and that foot is me.”


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

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Drivers Rack Up Misclassification Settlements, While GrubHub Fights Back

In 1984, the Cars released a sad-sounding song called Drive. I assume it was about a guy longing for a girl, but it’s too depressing to listen to the whole thing. Throughout the song, Ric Ocasek asks “Who’s gonna drive you home tonight?” (Why the long face, Ric? Kidding.)

If you use a ride hailing service, chances are it’s an independent contractor driver who’s gonna drive you home. But in several high profile lawsuits, drivers have challenged their independent contractor status. While these suits have been in the news for years, there have been a recent flurry of high dollar settlements. Earlier this year, Lyft agreed to pay $27 million to a class of 95,000 drivers in California and Door Dash agreed to pay $5 million. Just last week, Postmates agreed to pay $8.75 million.

Notably, none of these settlements resolved the issue of whether drivers for these companies are employees or independent contractors. The settlements involved payouts and agreed-upon changes in company policies, but none of the drivers were reclassified as employees.

GrubHub, on the other hand, has taken a misclassification case to trial. The case being tried is not a class action, and only about $600 is at issue. But the case may have significant ramifications for the status of independent contractor driviers, both at GrubHub and potentially elsewhere, and the case is being watched closely. (You can read more here and here.) As of this morning (9/18/17), the case is still in trial and there has been no verdict.

The point to remember is that companies who use an independent contractor model face a substantial risk of being sued. Plaintiffs’ lawyers are aggressive in recruiting contractors to file lawsuits that challenge their status as independent contractors, arguing that they should be paid as employees instead.

Companies using a contractor model should be proactive. Take steps to evaluate these relationships now. Adjust the facts and contract language to best position your business to defend against a misclassification challenge.

Independent contractor misclassification litigation is active and should be watched closely — unlike the Cars, who broke up in 1988 (for the most part, anyway; you can read more here in the unlikely event you care about the current status of the Cars).

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

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