Category Archives: Contingent Workers

03.01.18
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Despite New DOL, Independent Contractor Misclassification and Joint Employment Remain Risky

What effect of withdrawal of DOL memos

In June 2017, the DOL withdrew its Obama-era 2015 and 2016 informal guidance on joint employment and independent contractors. The memos covered federal wage and hour law (FLSA). Eight months later, what effect has that decision made?

Essentially none.

Remember, the 2015 and 2016 memos did not change the law on independent contractor misclassification or joint employment. Rather, the memos were an attempt by the Wage & Hour Administrator, David Weil, to summarize existing law – but with a pro-employee leaning. The memos selectively interpreted court decisions that supported Weil’s view of the world, i.e., that most workers are employees. When Weil left, the DOL said goodbye to his interpretations as well.

But … Continue reading →

02.15.18
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Gig Economy Workers Aren’t Saving for Retirement. That Might Cause You to Get Sued.

Gig economy savingsThe Drifters wanted listeners to save the last dance for them. Grand Funk Railroad wanted to save the land (album: E Pluribus Funk!!!). The Sex Pistols wanted to save the queen. Or they wanted God to do it for them. Lazy Sex Pistols.

But what about saving money? Not enough action there. A recent report from the Economic Policy Institute found that the median (50th percentile) working-age family had just $5,000 in retirement savings. (Warning: It’s boring Boring BORING, but click here if you dare.)

Workers classified as employees can Continue reading →

02.12.18
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Python vs. Boa: Does the GrubHub Misclassification Ruling Really Matter? (Don’t Believe the Hype!)

Python vs boa - independentr contractor misclassification and grubhubPythons and boa constrictors usually do not fight each other. At least that’s what I learned in herpetology school. The reason they don’t fight each other is that there’s too much risk. The boa risks getting bitten by the python’s lethal fangs. The python risks being constricted to death because that’s how constrictors work.

For roughly the same reason, independent contractor vs. employee disputes rarely go to trial. There’s too much to lose. A company that relies on independent contractors for its business model cannot afford a ruling that all of its contractors are really employees. That’s why these cases almost always settle.

The GrubHub case, however, Continue reading →

02.08.18
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After the NLRB Ruling, Is Joint Employment Still a Concern?

What is joint employment - imageLast month in the Hy-Brand decision, the NLRB raised the bar for determining whether a business is a joint employer. So now what? Is joint employment still a concern for businesses?

To paraphrase Tina Fey paraphrasing Sarah Palin paraphrasing Margie in Fargo, Ya! You betcha!

While the recent NLRB decision dropped the alert to Def-Con 4 in labor relations, the joint employment landscape under wage and hour laws is getting worse for employers, not better, thanks to the Fourth Circuit Court of Appeals. Businesses should Continue reading →

02.05.18
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Is Your Independent Contractor Agreement Like an Emotional Support Peacock?

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Image from The Jet Set

My favorite news story from last week was United Airlines’ decision not to allow a woman to fly with her emotional support peacock. Peacocks are pretty, strutting their feathery stuff to attract the smokin’ hot peafowl ladies, but they’re not cuddly, and they don’t belong in the tight quarters of commercial aircraft.

I did my research here, and I can confirm they’re not even good house pets. According to an Information Leaflet published by the Wrexham County (U.K.) Borough Council, peafowl have not taken well to modern methods of human transport. The Leaflet warns potential peafowl pet owners, “Peafowl for some reason are fond of cars and enjoy standing on them. They will also attack their reflection in cars and cause damage by scratching and pecking them.” They also have a “very loud high-pitched meow like call.”

None of this sounds like what I want in a seatmate on a commuter flight out of Newark.

Anyway, the point here is that looking pretty isn’t enough. Continue reading →

02.01.18
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Like a Drunken Possum, NEW GIG Act Fails Again.

NEW GIG act possum

Screenshot from DailyDot.com, 12/3/2017

I feel bad for this little guy. This possum apparently broke into a Florida liquor store, knocked over a bottle of bourbon, and got sauced. Wildlife rescue picked him up and checked him into rehab (no, not that kind). Full coverage here at DailyDot.com.

I applaud the critter’s effort, though.

He probably feels a little like Senator John Thune (R-SD), who has repeatedly introduced a bill called the NEW GIG Act — designed to simplify tax law for independent contractor misclassification scufflaws. Every time he gets close, though, someone knocks him over the head with a bottle. Or something like that.

The NEW GIG Act has been introduced in Congress several times. If passed, it would Continue reading →

01.25.18
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Bad News for Businesses: California May Rewrite Test for Independent Contractor vs. Employee

Shark california independent contractor misclassification

California businesses already have to cope with the threat of earthquakes, wildfires, Sharknados, and the craziest employment laws in all the land. The California Supreme Court may be about to make things even harder for businesses that use independent contractors.

For years, disputes over whether someone is an independent contractor or employee under California wage and hour law have been analyzed under the test used in S.G. Borello & Sons, which is a hybrid test combining elements of the Right to Control Test with elements of the Economic Realities Test. It is a multi-factor balancing test.

That may be about to change.

[Note 4/30/18: It did change. Read more here.]

Continue reading →

01.18.18
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Should Businesses Reclassify Workers as Contractors for 2018? (Or, Why You Shouldn’t Paint Your Dog)

Independent contractortax plan - don’t paint your dog

The Republicans just threw a bone to independent contractors with their new tax law. What does that mean for businesses? Let’s examine.

Strategy question for businesses: Now that tax law provides more favorable tax treatment to independent contractors (see more here), should business reclassify workers as contractors for 2018?

If that’s your reason, then no.

Suppose a new law required ice cream shops to give free cones to dalmation owners. This would be a stupid law, but stay with me.

If I paint dots on a yellow lab, do I get free ice cream?

No, of course not. Even I call my yellow lab a dalmation, it’s still a lab.

Continue reading →

01.15.18
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How Does the New Tax Plan Affect Independent Contractors?

In 1985, Simple Minds released the song, Dont You (Forget About Me). Despite the most ridiculous looking dancing you can imagine (under a chandelier, in front of TV screens, adding to the mood ???), the video was nominated for two MTV Video Music Awards.

The preposterous dance moves are pretty simple, though, which seems fitting for a band named Simple Minds.

Simplicity is the overriding theme here. Despite the overall complexity of the newly enacted tax plan, one thing is simple: The tax plan is good news for independent contractors.

Continue reading →

01.11.18
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Is Independent Contractor Misclassification, By Itself, an Unfair Labor Practice? (2018 update)

Clock independent contractor misclassificationAs Bob Dylan would say, The times they are a-changin’.  Upon being sworn in as new General Counsel of the NLRB, Peter Robb issued a Memorandum indicating his intent to reconsider a broad range of controversial positions taken by the Board and by his predecessor, Richard Griffin.

Among these positions is an issue we wrote about here, just a couple of months ago. The issue is whether the act of misclassifying a worker as an independent contractor could, by itself, be deemed an unfair labor practice. As explained in that blog post, an Administrative Law Judge had ruled that misclassification alone could be considered an unfair labor practice. The ALJ’s explanation went like this:

Continue reading →