Independent Contractors May Have a Weil Problem On Their Hands

Crash Test Dummies is a band from Winnipeg that I really like — especially the 1993 album, God Shuffled His Feet. It’s full of thoughtful questions asked in a booming deep voice. The song In the Days of the Caveman takes a look back, with some keen observations added for good measure:

In the days of the caveman
And mammoths and glaciers
Bugs and trees were your food then
No pajamas or doctors

See, that’s all true and probably not something you had thought about before.

President Biden has given us another reason to look back and reconsider some things you hadn’t thought about in a while. Last week, Biden nominated David Weil to serve as Wage and Hour Administrator. Weil served in the same role under Obama, so we’ve seen that movie too.

Here are some highlights from Weil’s last stint as W&H Administrator:

  • Administrator’s Interpretation 2016-1: Joint Employment under the FLSA, which I wrote about here when it was issued. Weil embraces the broadest possible view of joint employment. The Trump Administration’s DOL rescinded this guidance in 2017.
  • Administrator’s Interpretation 2015-1: Applying the FLSA’s “Suffer or Permit” Standard to Independent Contractor Classification, which I wrote about here. Weil advocates an expansive view of employment, declaring that “most workers are employees under the FLSA’s board definitions.”

Here’s what we can expect from Weil 2.0:

  • Increased enforcement activity by the DOL against companies using independent contractors.

Right now, claims generally arise through lawsuits, and class/collective actions present the most danger. The risk of class claims can be limited with arbitration agreements and class waivers. But arbitration agreements provide no defense against a DOL action. Those agreements don’t bind the government. Expect the DOL to go after companies that make extensive use of independent contractors.

  • Increased enforcement activity by the DOL on joint employment claims.

Remember, unlike independent contractor misclassification, joint employment is not illegal. Joint employment is a problem when a primary employer (such as a staffing agency or vendor/subcontractor) fails to comply with some aspect of the FLSA and its wage payment rules. Under a broad theory of joint employment, the company benefitting from the services is going to be liable for the errors of the primary employer, even though the alleged joint employer had no control over the primary employer’s wage practices.

  • New regulations on independent contractor classification and joint employment.

The standards and test keep changing, depending on who holds the White House. One step the Wage and Hour Division can take to try to make its views more permanent is to adopt its views as formal regulations, not just Administrator’s Interpretations. This is what the Trump DOL tried to do for both independent contractor misclassification and joint employment. Expect a strong push by the DOL to adopt new regulations that make it harder to maintain independent contractor status and easier to find joint employment.

The bottom line is that we’re going back in time. Maybe not so far back that bugs and trees were your food then, but back to 2015 and 2016 interpretations of the FLSA. Expect no pajamas or doctors.

What to do about it? Businesses that rely on independent contractors should tighten their agreements now. Businesses that engage staffing agencies should review those contracts now.

These posts contain a few of my favorite tips:

Good luck out there, and beware of mammoths and glaciers.

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

© 2021 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

2018_Web100Badge
 

SLoB Act? Really? Businesses Should Support This Joint Employment Bill Despite Dumb Name

Image by Prawny from Pixabay

It’s all about branding, fellas. Republicans have introduced bills with clever acronyms before. Examples include:

  • JAWS Act (Justice Attributed to Wounded Sharks)
  • BEER Act (Brewers Excise and Economic Relief Act); and
  • EL CHAPO Act (Ensuring Lawful Collection of Hidden Assets to Provide Order), to require El Chapo to forfeit assets from the drug trade.

But I’m puzzled by the more recent lack of effort.

Seeking to counter the Democrats’ boldly named PRO Act (Protecting the Right to Organize), Republicans have introduced the SLoB Act (Save Local Business).

Seriously? That’s the best that your marketing team could do?

The SLoB Act would narrow the definition of joint employment. To find “joint employer” status, proof would be required of direct, actual, immediate, and significant control over essential terms and conditions of employment, such as hiring, firing, pay, benefits, supervision, scheduling, and discipline.

That would be terrific for franchising and for all businesses that use outsourced labor, such as through staffing agencies. The SLoB Act would amend both the National Labor Relations Act (NLRA) and the Fair Labor Standards Act (FLSA). For those of you who recall the Browning-Ferris escapades, this bill would repeal the loosey-goosey joint employment standard the NLRB tried to adopt in 2015, later repealed, unrepealed, and appealed. The bill would codify a tougher test, making it much harder to prove joint employment.

The SLoB Act will not pass, at least not in this Congress. It is unlikely to have any Democratic support. But it has a letter of support signed by 65 leading industry groups, including the U.S. Chamber of Commerce, the American Trucking Association, the National Franchise Association, and the Society for Human Resource Management.

I like the bill, but I’d have gone with a better acronym. Such as…

  • JERKY Act (Joint Employment is Really Kinda Yucky)
  • EJECT Act (Editing the Joint Employment Control Test)
  • JESUS Act (Joint Employment Should be Used Sparingly).

I think the last one would garner the most support, no matter what the bill was about. No one wants to go on record opposing Jesus.

But nobody asked me.

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

© 2021 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

2018_Web100Badge
 

Managing a Large Contingent Workforce: What are MSP, VMS, and FMS?

When something important has to get done, you’ll do whatever it takes. And you’re not alone. This ten-year old, for example, stole his parents’ car to drive to the grocery store to buy Cheerios when he found they had run out at home.

I’d start hiding the car keys. There are better ways to replenish the Cheerios.

Replenishing your workforce can be a tougher job. When building a contingent workforce management program, there are lots of options and lots of acronyms.

Here’s a high level cheat sheet of the key options, along with the acronyms you’ll hear:

MSP = Managed Service Provider.  Third party that oversees the selection of service providers. An MSP negotiates contracts with staffing agencies and works with suppliers, usually not working directly with individual talent. Uses VMS, possibly FMS.

VMS = Vendor Management System.  Web-based application that allows organization to secure and manage staffing services on a temporary, permanent, or contract basis. Features include job requisitions and staff ordering. Centralizes and handles the administrative process of multiple vendors for invoicing and payments.

FMS = Freelance Management System.  Technology platform used to match opportunities with talent. May include a talent pool; may include public marketplace and a private talent pool. Helps ICs find opportunities.

VOP = Vendor on premise. Preferred staffing agency, onsite.

Your company can use a VMS directly or can retain an MSP (which will use its own VMS) to manage the talent acquisition process. Here’s my weak attempt at a flow chart:

          MSP

        /       \

     VMS    FMS   

       |            |

Staffing       ICs

Agencies

     |

Temps, ICs

Here’s what I’m trying to show: If you retain an MSP, the MSP will likely use a VMS to work with staffing agencies, and the staffing agency will identify temps or ICs. Or, the MSP may use a FSP to directly retain ICs.

If you do not retain an MSP, you can handle the talent search process in house, using a VMS to oversee the relationship with staffing agencies, who will procure temps or ICs. Or you can use a FMS to match qualified ICs with your project-based needs.

This is a vast oversimplification, but hopefully it’s helpful at a high level. Best wishes for a terrific week, and don’t forget to maintain an adequate supply of Cheerios.

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

© 2021 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

Sign up now for the BakerHostetler 2021 Master Class on The State of Labor Relations and Employment Law. Twelve sessions, one hour every Tuesday, 2 pm ET, all virtual, no cost. Click here for more information. List me as your BakerHostetler contact so I know you’ve registered. 

2018_Web100Badge
 

Waiting for Something? Here’s What to Expect from the NLRB

Zippy accepts a package delivery.

Our Amazon delivery driver snapped this photo yesterday, when leaving a package at my door. There’s Zippy, waiting patiently and watching. Her dog treats arrived in a separate delivery yesterday, so this package is probably not for her.

What have you been waiting for? If not a special delivery, then maybe a change in federal labor laws? Oh, not quite as good, but very likely.

Here are three things to expect from the NLRB during the Biden Administration:

1. Joint employment, and a return to Browning-Ferris.

In 2015, the NLRB overturned 30 years of precedent to create a new test to determine when staffing agency workers are joint employees. That decision, known as Browning-Ferris, allowed for a finding of joint employment even if control was indirect, reserved, and related to nonessential terms.

The Browning-Ferris standard was later abandoned, but it will likely come back. Expect a new test that makes it easier to establish a joint employment relationship under federal labor law. You can read more about the Browning-Ferris test here.

2. Independent contractor misclassification, as an unfair labor practice.

Is independent contractor misclassification, by itself, an unfair labor practice? In 2019, the NLRB said no, it’s not necessarily a violation of the NLRA to misclassify an employee as a contractor. The Board’s rationale was that a business can express its legitimate belief that workers were contractors, even if that belief turned out to be wrong.

Expect that to change. A more union-friendly Board is likely to rule that when a business incorrectly tells workers they are contractors, the business is interfering with workers’ rights. Expect independent contractor misclassification to become an automatic violation of the NLRA.  

3. Independent contractor misclassification, and a tougher test for proving contractor status.

In 2019, the Board updated the test for determining Who Is My Employee?, making it easier to prove independent contractor status under the NLRA.

From 2014 to 2018, the Board had taken the position that to be an independent contractor, you must be “in fact, rendering services as part of an independent business.” That test was abandoned in 2019, in a case called SuperShuttle DFW, when the Board said that you can be an independent contractor if you are permitted to run your own business, whether you actually do so or not. The 2019 ruling reinstated the Right to Control Test as the proper way to decide employee vs. independent contractor status.

Expect a return to the 2014 test, which would mean that to be an independent contractor, you’d need to actually operate as an independent business.

When might all this happen?

Some in 2021, some in 2022.

Biden has already removed Peter Robb as the NLRB’s General Counsel, replacing him with Peter Sung Ohr as Acting GC. The GC acts as the Board’s chief prosecutor, setting the administration’s priorities on what it considers to be a violation of the NLRA. We are already starting to see changes in Board policy, but the composition of the five-member Board will not shift to majority Democratic-control until after William Emanuel’s term expires in August 2021.

In 2021, we can expect changes in policy that are more pro-worker. In 2022, we can expect to start seeing 3-2 rulings in NLRB decisions that are more pro-worker. The Democrats will take a majority of Board seats in late 2021.

Businesses should anticipate these changes and plan accordingly. This package is going to be delivered. It’s just a matter of time.

© 2021 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

Sign up now for the BakerHostetler 2021 Master Class on The State of Labor Relations and Employment Law. Twelve sessions, one hour every Tuesday, 2 pm ET, all virtual, no cost. Click here for more information. List me as your BakerHostetler contact so I know you’ve registered. 

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

 
2018_Web100Badge
 

Joint Employment Test Gets Muddied Again: Federal Court Rejects New DOL Test

Muddy Waters is how you want your blues, not how you want your laws.

A federal district judge in New York last week kicked up a lot of mud in an area of the law that had finally seen some clarity – the definition of “joint employment.” Now we’re back in the muck.

Click here to read all about it, and let me know if you; like to subscribe to the BakerHostetler Employment Law Spotlight Blog, where I originally posted this week’s post.

© 2020 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

 
2018_Web100Badge
 

Travel, Quarantine and Joint Employees: What Can You Require?

flying shark

Travel looks different now than ever before — especially for this shark. Last month in Myrtle Beach, a large bird plucked a shark out of the water and flew around with it. And best of all, there’s video! (Thanks @RexChapman for always keeping me entertained.)

Travel is different for people now too. Several states require people to quarantine if they travel to certain hot spots. New York, New Jersey and Connecticut require a 14-day quarantine if you return from any of 19 states, including popular summer vacation spots like Florida and South Carolina (Visit S.C.: We’ve Got Flying Sharks!). Other states with mandatory post-travel quarantines are listed here (as of 7/10/2020).

What to do when your employees vacation to a spot that requires post-visit quarantine? And what if temps, employed by a staffing agency, travel to a hot spot and want to return to work? Can you impose the same rules?

Let’s start with employees. Sometimes travel to a hotspot may be appropriate (visit a dying relative, attend funeral, military training). But personal vacation presents a problem. Employees should not be allowed to turn a one-week vacation into a three-week boondoggle.

Decide on a policy, then provide advance notice. You can remind employees of mandatory post-travel quarantine rules and, during a pandemic, you are allowed to ask employees where they are going on vacation. This is a matter of public health and employee safety.

Consider posting a notice that urges employees to avoid any personal travel to a hotspot, advising that they will not be permitted back in the workplace for 14 days (if your state requires). Let them know that if they are unable to work from home, this 14-day period is not an excused absence. Advise employees that normal attendance rules will apply, and two weeks of unexcused absences may subject them to termination. Or let them use and max out vacation and PTO during the 14-day period. Or apply normal attendance rules but cap the discipline at a final written warning.

You can impose different rules for employees who can work from home. Let them work from home. The policy I suggest above is for people who are expected to be onsite to work. The point is that you’re giving them one week off, not three.

You have many options, but be sure to notify employees in advance of the consequences of their voluntary travel decisions. You can require employees to sign the notice when they request vacation time or before they leave.

Can you do the same with your temps who are employed by staffing agencies? You might funnel the notice through the staffing agency but, in principle, yes. This is a matter of public health, and you should not have individuals onsite if your state has ordered that they be quarantined. You can ask your temps where they are going, and you can warn them that you will ask the staffing company to end their assignments if they take a vacation that subjects them to mandatory quarantine.

So if you go to South Carolina and live in selected states, be prepared to lose your job upon returning home. But at least while you’re gone, you may be able to watch flying sharks.

© 2020 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

2018_Web100Badge

New Joint Employment Decision: Poo Paint or Just Poo?

poo rainbow

Sitting outside this weekend I was thinking about things I wish I had when my kids were toddlers, things that would have helped to keep them occupied. The first things that came to mind were all electronic — iPhone, iPad, Netflix. But then I came upon this. And it’s good that I didn’t know about it a decade ago.

https://www.poopaint.net/home-1

From the website:

Inspiration found in a bathroom stall!
PooPaint allows kids to wipe using toilet paper that feels as if they were playing with a colouring book.
Making potty time into a positive and fun experience!

Yes, my friends, it’s a coloring book for poo, like color by numbers but with only one color — brown. Or maybe for some, a beautiful mahogany. Square 3 is an exact reproduction of Cleveland winters: fill in the whole page, leaving gray at the top for sky.

Anyway, the case I want to talk about today is a joint employment case from the Sixth Circuit Court of Appeals. For potential joint employers, the decision is like potty time with poopaint — “a positive and fun experience!” For workers, it’s just poo.

In this case, a physical therapist assistant named Thomila worked in a nursing home. The operator of the nursing home contracted with a third party to provide staff.  The third party did the hiring, firing, controlled pay, provided benefits, supervised the workers, and scheduled them.

Thomila worked for the third party. At one point Thomila accused her supervisor, also a third party employee, of sexually harassing her. The third party investigated and fired him. So far, so good.

But then the nursing home operator — which apparently liked the supervisor — decided that Thomila was no longer a “good fit” for the nursing home and asked the third party to remove her. It did.

Thomila sued the nursing home operator, claiming that its request to remove her (after she complained of sexual harassment) was retaliation in violation of Title VII. Although she was employed by the third party, she claimed that the nursing home operator was a joint employer and therefore could be liable under Title VII’s anti-retaliation rule.

But the case was thrown out on a motion for summary judgment. The court ruled that the nursing home operator was not a joint employer under the test used for determining joint employment under Title VII.

The test for joint employment under Title VII is whether the alleged joint employer has the ability to:

  • Hire and fire,
  • Discipline,
  • Affect compensation and benefits, and
  • Direct and supervise performance.

(At least, that’s the test in the Sixth Circuit, which includes OH, MI, TN, and KY. You’d think the test would be the same everywhere since this is a federal law, but it sometimes varies a bit.)

Anyway, back to Thomila. The third party controlled all of these things, so the nursing home operator was not a joint employer. Since it was not a joint employer, it has no duty to Thomila under Title VII. The anti-retaliation provisions in Title VII did not apply. Case dismissed.

Thomila tried one other claim too, and this may have been her stronger argument. She alleged that by firing her, the nursing hone operator interfered with her access to employment opportunities. That’s a separate kind of claim. But the court ruled that the nursing home operator was not liable under that claim either, since the third party had offered Thomila other placement opportunities (but all were out of state). On this claim, the decision was 2-1, with the dissenting judge arguing that the interference claim should have been allowed to go forward. The interference claim does not require a finding of joint employment.

The lesson here for employers is that the test for joint employment is technical. The facts matter a lot. The risk of joint employment can be minimized if the relationship is carefully structured so that the third party retains control over the factors listed above. The contract should be drafted carefully, detailing who is responsible for what.

A poorly drafted contract is not worth the paper it’s written on. Kind of like that specific kind of paper advertised here as “Inspiration found in a bathroom stall!” And that should not be the kind of paper you’re looking for when drafting your contracts.

So draft wisely and, for “a fun and positive experience!“, choose your paper carefully.

© 2020 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

2018_Web100Badge

 

NSFW? Not Quite. But 18 States Say DOL’s New Joint Employment Rule Is Inappropriate.

Zippy Michigan

Zippy sunbathes in the nude.

Some things sound inappropriate, but they’re not. For example, I sometimes post naked pictures on my blog. But only of my dog. She’s immodest and doesn’t seem to mind. (Her fur coat doesn’t count.) So, you see, that’s not inappropriate.

What about the DOL’s new joint employment test, which went into effect in March? Was that inappropriate? Eighteen Democratic state attorneys general seem to think so, and they’ve filed a federal lawsuit to try to undo the rule. For those of you keeping score at home, they claim the new rule violates the Administrative Procedures Act and is not consistent with the Fair Labor Standards Act.

Last week, a federal judge in New York rejected the DOL’s motion to dismiss the lawsuit, meaning the case moves forward. The DOL argued that the states lacked standing to challenge the new rule. Lack of standing means they can’t sue because they’re not harmed by the new rule.

But the judge found that the states “plausibly alleged” that they have standing to sue. He noted that the new rule could reduce the total amount of wages paid to employees in their states, which could lead to a reduction in tax revenues. The loss of tax revenues and the anticipated increased expense in enforcing state wage and hour laws would be enough. The states can proceed.

The ruling does not address whether the lawsuit has any merit, just that it may proceed.

While no one would claim the new rule is NSFW, these states argue that the content of the new rule and the way it was passed was inappropriate. But like the naked photo above, you need to see the full picture before drawing any conclusions about what’s proper and what’s not. 

For now, the DOL’s new rule remains in effect.  That means it’s more difficult to establish joint employment than it was before. It’s also difficult, by the way, to get a dog to wear a hat. But we did it. And Zippy looks ready for college football season. 

© 2020 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

 
2018_Web100Badge
 

 

“Who Was That Masked Man?” It Could be Your Independent Contractor.

who was that masked manFrom 1949 to 1957, The Lone Ranger ruled the airwaves. As recounted in the all-knowing wikipedia: “At the end of each episode, mission completed, one of the characters would always ask the sheriff or other authority, ‘Who was that masked man?’ When it was explained, ‘Oh, he’s the Lone Ranger!,’ the Ranger and Tonto would be seen galloping off with the cry, ‘Hi-Yo, Silver! Away!’ catching the attention of one of the townspeople crossing the street.”

Today, the answer to “Who was that masked man?” is likely to be, “Oh, he’s the lone maintenance guy on third shift” or “Oh, that’s Wilbur, our accountant.”

With many states now requiring employees and customers to wear face coverings, should the same be required of your company’s independent contractors? If you require contractors to wear face coverings, is that the type of control that could weigh in favor of employee status?

The practical answer is that, as the nation tries to emerge from the coronavirus pandemic, it’s a good practice to require everyone who works onsite — employees, customers, and independent contractors — to wear face coverings. The use of face coverings can be made mandatory as a condition of entering your facility. That is a site safety measure, not evidence of control that would convert your contractor to an employee.

But what about when the contractor works remotely, perhaps interacting with customers or working independently offsite? In that case, follow common sense and any applicable state and local law. For independent contractors who work on their own or in their homes, it’s probably not necessary to impose any specific face covering requirement. But that doesn’t mean they should freely expose their titillating chins and lips to the adoring masses. In your contracts with independent contractors, it is always wise to require that they comply with all applicable laws when performing any part of the services. That catch-all requirement is going to capture whatever face covering rule applies in that state at that time. The contractor should be required to do whatever the state or local law requires. Different states have different requirements.

What about staffing agency workers who work onsite? Can you safely impose the same face covering requirements on them as with your W-2 employees? Yes, and you should. Anyone working in your facility needs to comply with the applicable state and local work rules. That includes staffing agency workers at your location.

When the popular show’s run ended, Clayton Moore, who played the Lone Ranger, used to make public appearances in his distinctive mask. But in 1979, the Wrather Corp., which owned the rights to the character, sued Moore to make him stop wearing the mask in public. Moore reverted to wearing green-tinted sunglasses with his cowboy outfit, hardly an acceptable substitute for our heroic roughrider.

In 1985, the Wrather Corp. relented and allowed Moore to again don the mask. As he told the Los Angeles Times in 1985, “Playing the Lone Ranger made me more considerate of my fellow man.”

In today’s COVID-19 climate, you can follow the Lone Ranger’s ethos and require face coverings. It’s a small gesture that will make you more considerate of your fellow man.

Hi-yo!

2018_Web100Badge

© 2020 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

 

Nothing on TV? Read Your Contract to See If There’s a COVID-19 Exception

covid-19 force majeure

Now that everything fun is banned and workplaces are sending people home, I’m planning to spend next week getting hernia repair surgery on Wednesday. Then I’ll take it easy watching baseball NCAA basketball the NBA tennis Netflix the second part of the week.

Or so I thought. Yesterday I learned that all non-essential surgeries are likely going to be cancelled. So it may be back to work. Or home to work. Or some variation of work. I think the hernia and I will continue our relationship for a while longer.

Where does this leave you with independent contractors and staffing agency contracts?

COVID-19 is creating conditions we never anticipated, and the work to be performed by contractors or staffing agency workers may be unnecessary — or impossible.

Are you still on the hook to pay them? The answer lies within your contract. There are a few ways performance may be excused.

  1. Force majeure or impossibility clauses. Force majeure is French legalese that means, literally, “Bad stuff happens if people eat bats and pangolins.” I’m not real good at French, so I could be off slightly. But it’s close. These are the boilerplate provisions most people never read. It’s time to read them. We now have states of emergency declared, pandemic status, CDC Level 2 and 3 travel restrictions, and mandatory quarantines in various parts of the world. Any of these events may be sufficient to trigger the force majeure or impossibility clause in your contract, if there is such a clause. Most of these clauses will not be so specific as to address pandemics, but terms like “Acts of God” or similar language might suffice. These clauses generally aren’t expected to list every contingency that would trigger excusing performance. A global pandemic seems likely to fit — if the conditions make performance impossible. A general business downturn that results from the virus might not be enough.
  2. Termination without cause. A force majeure clause is probably unnecessary if performance can be cancelled without cause, either at will or after a short notice period. This may be the time to issue notice.
  3. Modification or renegotiation. Your contractor or staffing agency may be as unprepared or as unwilling to perform as you are. It’s time to have a discussion — preferably by phone or while maintaining social distancing. A side letter in which both sides agree to modify the contract may be in order.
  4. No obligation to perform. If your contract is a master services agreement, performance might not be required. Check your work orders, and maybe all you need to do is modify or terminate those.

In the meantime, consider opening that bottle of wine you’ve been saving and starting a good book. We all need to make the best of a bad situation, and Cabernet can help.

2018_Web100Badge

© 2020 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

Need training on avoiding independent contractor misclassification claims? Hey, I do that!  

Enter your email address to subscribe to this blog and receive notifications of new posts by email.