Why You Should Limit Workplace Rules That Apply to Contractors (Twisted Sister Edition)

There are so many great songs about defying authority. What’s the best? Hard to say. The best video, though – that’s easy. We’re Not Gonna Take It by Twisted Sister. (Watch here, then thank me later. I could watch the first minute a hundred times. Say it with me: “What do you want to do with your life?”)

Rock may about breaking rules, but business is not. With your employees, there are lots of rules you want them to follow, and you probably list them in painful detail in handbooks, posters, flyers, brochures, catalogs, signposts, compendiums, directories, and mandatory worker inner eyelid tattoos.

What about independent contractors, though? To preserve independent contractor status, you already know you want to try to minimize your exercise of control. But some rules are needed, expecially for contractors who work on your site.

Here are some guidelines to consider:

Rules appropriate for employees, but not well-suited for contractors:

  • Employee Handbooks
  • Policy Manuals
  • FMLA Policy
  • Vacation and leave policies

Applying those employee-specific rules to independent contractors would tend to support an argument that contractors are being treated like employees.

Some rules, though, are more appropriate to ask on-site contractors to follow.

Examples of rules that are generally suitable to apply to contractors:

  • Safety rules, especially those related to ensuring safety at the facility (e.g., must wear hard hat, please do not flick matches at that industrial-size fuel tank, keep your fingers clear of the 4000 ton forging press)
  • Emergency evacuation or exit procedures
  • Anti-Discrimination Policy (if drafted broadly, to cover employees, contractors, visitors, interlopers, outerlopers, sidelopers, etc.)

These types of rules can be applied to contractors because they do not tell the contractor how to do the work. Instead, they are designed to ensure a safe and productive space where no one gets hurt.

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

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What Role Does the EEOC Play in Independent Contractor Misclassification?

IMG_1081The EEOC’s jurisdiction is limited to claims brought under certain federal anti-discrimination laws. The reach of these laws, however, is limited to employees. It is not a violation of Title VII, for example, to discriminate against an independent contractor.

So the EEOC has nothing to do with issues of independent contracor misclassification, right? Wrong.

Because the EEOC’s jurisdiction is limited to claims brought by employees, the Commission is incentivized to reclassify independent contractors as employees — especially when the Commission thinks that a company’s conduct was untoward.

In October 2016, shortly before the election, the EEOC published its Strategic Enforcement Plan for 2017-21. Lo and behold (is it ever just “lo”?), Priority #3 is “Addressing Selected Emerging and Developing Issues,” among which the EEOC lists:

Clarifying the employment relationship and the application of workplace civil rights protections in light of the increasing complexity of employment relationships and structures, including temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy.

In other words, the EEOC wants a seat at the Independent Contractor Misclassification Table. It wants a chance to decide who is a contractor and who is an employee, because every chance to find misclassification is a chance to apply the laws that the Commission is charged with enforcing. No employment? No EEOC.

Am I cynical? You bet! But the EEOC has empirically interpreted its mission to include expanding employee protections. In this case, that means expanding who is an employee.

On January 25, 2017, President Trump named Commissioner Victoria A. Lipnic Acting Chair of the EEOC. She began her service as a Commissioner of the EEOC in April 2010, having been confirmed by the Senate for an initial term ending on July 1, 2015. In November 2015, she was confirmed by the Senate for a second term ending on July 1, 2020.

To date, there is no indication of any change in the Strategic Enforcement Plan for 2017-21.

Expect the EEOC to take a more active role in trying to determine who is an independent contractor and who is an employee.

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

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