Yesterday I was at Ohio E-check. When they use their fancy vehicle emissions testing equipment, they ask you to get out of your car and wait in a small glass-walled waiting area. Inside there are two signs. The first says: “Ohio E-Check. No cell phones!” The second says: “Ohio E-Check. How are we doing? To comment, use this QR code.”
Regrettably, I complied with the first sign, so I do not have a picture for you of the two signs. (While waiting, I tried like hell to memorize that QR code!)
When waiting for E-Check, mixed messages are funny. When retaining independent contractors, however, mixed messages are no joke. If enough signs suggest that a contractor is really an employee, the risk of a misclassification finding is heightened, and the consequences of misclassification can be severe.
Nope. Not that Godfather.
Forgive me in advance if I sound condescending. And skeptical. And incredulous. But above all, I am amused.
This is the story of a strip club called the Godfather. When one of its dancers, a young lassie named Tassy, tried to sue, alleging that she had been misclassified as an independent contractor, the Godfather asked the court to send her claims to arbitration, as required under the Godfather’s dancer agreement.
But the Godfather had one small problem. It could not produce the agreement because, it claimed, the agreement was washed out in a flood caused by a rusted-out water heater in the back room. As everyone knows, the flood-prone back room with the rusted-out water heater is the best place for storing corporate legal documents. (Note to self: update template document retention guidelines.) Preferably, as the Godfather did, store them in unmarked boxes with no index or system for determining exactly what was in the boxes. But Tassy’s agreement was in there. They’re pretty sure, anyway.
Why did the cassowary cross the road? To get to the other side.
Careful planning and foresight are important. For example, it would have been a good idea for a Gainesville, Florida man to have read up a little more on cassowaries before choosing to own one as a pet. A cassowary is a large flightless bird that grows up to six feet tall and can weigh 130 pounds. It has a four-inch claw on each foot, used to slice open its prey. (Infomercial: It’s both a fork and a knife!) The bird has powerful legs that it can use to kill its prey with a single kick — or chase it down by running at speeds up to 30 mph. Think Big Bird meets Edward Scissorhands meets pissed-off hungry crocodile in a go-cart.
Anyway, some guy in Gainesville bought one as a pet. It promptly killed him. Poor planning. I would have recommended a labradoodle.
A better example of planning ahead is GrubHub and its independent contractor arbitration agreements.
Not Mick Jagger
You can’t always get what you want, said a wise English sage in 1969. This advice still holds true. For example, Chinese Foreign Ministry spokesman Lu Kang recently declared that the reincarnation of the Dalai Lama must comply with Chinese law. Good luck with that.
The enforcement mechanism for Lu’s edict is unclear, but the Chinese Communist Party knows what it wants. (Allow me a brief diversion. My favorite sentence in the cnn.com story: “It isn’t completely clear whether the Dalai Lama will allow himself to be reincarnated after he dies.” You and me both, brother!)
Another example arose in a recent court case, in which a messenger service required its independent contractor messengers to sign an arbitration agreement. Like spokesman Lu, the messenger service may have demanded a bit too much. A California Court of Appeal declared the arbitration agreement invalid, ruling that it was both procedural and substantively unconscionable.
What makes an arbitration agreement so one-sided that it’s unconscionable?
Vacation is all the Go-Go’s and their misplaced apostrophe ever wanted. Vacation, had to get away. Vacation, had to be spent alone.
Employees want vacation too, and so do independent contractors. Should your company’s vacation policy apply to independent contractors too? Can you grant your independent contractors a certain amount of paid vacation?
Not a good idea.
In the various tests for Independent Contractor vs. Employee, one of the recurring themes is that a contractor is in business for himself/herself. The contractor is supposed to be able to work when he or she wants, so long as deadlines are met.
It seems a little presumptuous that when Paul Simon released the single, “Slip Slidin’ Away,” he released it as one of two new songs on his 1977 Greatest Hits, Etc. album. How is it a greatest hit before it’s been released? But sure enough, the song rose to #5 on the Billboard charts. Today’s Challenge: Ten bonus points will be awarded to anyone who can name the other new song that debuted on Simon’s 1977 Greatest Hits, Etc. compilation. The answer is at the end of the post.
In July, we wrote about “Convoy,” a 1975 song about a fictional trucker rebellion, as a way to introduce a new lawsuit filed by the Western States Trucking Association. The lawsuit seeks to invalidate California’s burdensome ABC Test (the Dynamex test), which is now used to determine who is a contractor and who is an employee under California wage and hour law. The truckers argued that the law — as applied to truckers — was preempted by federal laws that seek to promote uniformity in the interstate transportation industry.
Based on a recent decision in a California federal court, the truckers’ hopes of invalidating Dynamex may be Slip Slidin’ Away.
The face that sunk a lawsuit?
In my house, we sometimes have bizarre but short conversations about job functions. A recent example:
Lindsay: I think I want to do a job that helps people.
Andy: Doesn’t every job help people?
Me: Not executioner.
This post is about a case involving directional drilling consultants. And while that sounds like the job title of a scene director in the porn industry, it’s actually a job involving subterranean oil and gas exploration. Directional drilling consultants (DDs) advise drilling companies how to aim their directional drills when drilling a well that starts down a vertical path, then switches to horizontal. This allows the company to drill discretely in areas away from home. Like Josh Duggar.