West Virginia Adopts Pro-Business Independent Contractor Test

Three Fun Facts about West Virginia:

  1. The New River is actually one of the world’s oldest rivers and, unusually, flows south to north.
  2. The nickname and team mascot for Poca High School in Poca, WV is the Dots.
  3. West Virginia just adopted the most pro-business worker classification test in the nation.

While I would love to write about the Poca Dots, I’m going to focus on the state’s new worker classification test, enacted March 11, 2021. It takes effect 90 days later, on June 9, 2021.

The new test creates a safe harbor. If you comply with a list of requirements, including a written contract, your worker is automatically an independent contractor under WV wage and hour law, anti-discrimination law, workers’ compensation, and unemployment.

The bill nearly had a disastrous flaw. In its original form, passed by one chamber, if you failed to meet the safe harbor criteria, you’d automatically be deemed an employee. That would have had absurd unintended consequences, including that a worker would automatically be an employee if there was no written contract or if the contract did not include all required clauses.

I drafted a last-minute amendment that was adopted and inserted into the bill at the eleventh hour. The amendment said that if the safe harbor was not met, the worker would not automatically be an employee. Instead, the worker’s status would determined by using the 20-factor Right to Control Test in IRS Rev. Ruling 87-41. (The 20 factors are explained here in this PDF from the Texas Workforce Commission.)

The bill is very pro-business.

Businesses retaining contractors in WV should review the safe harbor provisions and be sure to comply. Compliance means a free pass for independent contractor status under state law (but not under federal law). Contracts may need to be adjusted to include the required clauses. Now is the time to do that.

Here is a link to the bill. The blue text contains the safe harbor. Read it closely and make sure these provisions are in your WV independent contractor agreements.

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

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Who WAS My Employee? Companies Must Provide This Notice to Former Employees By May 31.

Please hold. The past is calling. Source: LOC

This weekend I watched The Call, a South Korean horror film (yes, subtitles) about a woman who receives a call from 20 years earlier. The past and present keep changing as the two callers interact over time. Oddly there were two movies released in 2020 named The Call. It’s this one.

The past can affect the present, but not usually the way it did in the movie.

The American Rescue Plan Act of 2021 (ARPA) imposes new COBRA-related obligations on employers, including notice requirements to former employees. In this blog, we usually ask Who Is My Employee?, but this week’s post is about Who Was My Employee?

ARPA changes the COBRA rules for April 1 through September 30, 2021. Employees who are involuntary terminated or become COBRA-eligible due to a reduction in hours are entitled to a 100% subsidy on their COBRA premiums for six months, April 1 to September 30. The company must pay the premiums, which are then reimbursed by the government through payroll tax credits.

ARPA extends this subsidy opportunity to former employees too, even those who did not sign up for COBRA when they were terminated. Under ARPA, those individuals get a second chance to sign up if they became COBRA-eligible less than 18 months ago.

Employers must send new COBRA notices to individuals who were involuntarily terminated (or who became COBRA-eligible due to a reduction in hours) within the last 18 months, including those who did not choose coverage at the time. These individuals can take advantage of the subsidized premiums from April through September, unless their 18-month COBRA eligibility period ends earlier or they become ineligible for another reason. Eligibility ends if the individual becomes eligible for other healthcare coverage or Medicare.

The DOL will be publishing model notices by April 10.

Employers must send this notice by May 31.

There’s more that employers need to know about changes to COBRA. The changes mean that your template severance agreements probably need to be revised too. There are new COBRA notice requirements for departing employees and new notices that must be sent when the subsidies are about to end.

I drafted a post addressing these subjects for BakerHostetler’s Employment Law Spotlight blog, which you can read here.

Reaching back 18 months to send notices to departed employees is an unusual requirement, but employers will have to make reasonable efforts to track these people down. Fortunately, unlike in The Call, employers don’t need to worry about anything that happened 20 years ago. The 18-month lookback is plenty to worry about.

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

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Use a Sea Slug’s Secret Superpower When Drafting IC Arbitration Clauses

Witness: The severed head of a sea slug. Image by Sakaya Mitoh, who performed this awesome experiment.

Did you know that sea slugs have superpowers?

According to researchers at the Nara Women’s University in Japan, if you sever the head of a certain type of slug, the slug can grow a new body, organs and all. I like that as the basis for a new Marvel character. Or maybe the slug is a distant cousin to Roland the Headless Thompson Gunner.

The moral of the story is that when a slug loses its head, all is not lost. (This is how sea slugs survived the French revolution.) The same may be true in the context of arbitration agreements for independent contractors. (Come on, that’s a really good segue, isn’t it?)

For independent contractors in the transportation industry, arbitration agreements may be unenforceable under federal law. But all is not lost. In some states, state arbitration law can save the day. That means it’s important to know your state laws and to draft choice of law clauses carefully.

Here’s what I mean:

For companies that work extensively with independent contractors, there are lots of good reasons to require that disputes are resolved in arbitration, not in court. One of the biggest advantages of arbitration is the ability to include a class action waiver, requiring any claimant to bring a case on an individual basis only. No class actions. Class claims are the sexiest of all claims to plaintiff’s lawyers. Individual claims are not nearly as lucrative. Or sexy.

The Federal Arbitration Act (FAA) embraces arbitration as an enforceable way to resolve disputes. But there’s a big exception to the FAA. It doesn’t apply to transportation workers “engaged in … interstate commerce.” The meaning of that phrase is unclear, and there are lots of lawyers fighting about its scope. Different courts have come to different conclusions, especially regarding last mile delivery drivers and rideshare. Eventually, the Supreme Court is likely to rule on exactly what this phrase means.

But in the meantime, what if your contractors are arguably “engaged in … interstate commerce”? Are you stuck with a lengthy legal battle over whether your arbitration agreement is enforceable under the FAA?

Not necessarily. Don’t forget about state law. Several states have their own laws embracing arbitration as an enforceable way to resolve disputes, and these state laws generally do not have exceptions for transportation workers.

New York is a good example. Courts in New York have upheld arbitration agreements, even when the workers were arguably transportation workers not covered by the FAA.

Choose your state law carefully, especially if your arbitration agreement might be subject to the FAA’s exception for transportation workers. It’s common to include a “choice of law” clause in contracts, but those clauses are often dropped into contracts without anyone thinking about why a certain state’s law should apply. Those clauses really do matter, and the choice of law section should be carefully considered.

When it comes to arbitration agreements, the choice of law clauses should not be viewed as a boilerplate clause to toss in without careful thought.

The ability to choose a particular state’s law is a real superpower. Use it like a sea slug!

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

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(Just Like) Starting Over: Biden Salutes John Lennon on Joint Employer Policy

The 1980 Double Fantasy album is meh, featuring alternating tracks by John Lennon and Yoko Ono. But there’s at least on gem on that album, and it’s the very first track: “(Just Like) Starting Over.” The song was originally titled “Starting Over” but the parenthetical was a late addition, reportedly inserted to make sure listeners knew this wasn’t Dolly Parton’s country music chart topper from the same year, “Starting Over Again.” Not that anyone has ever confused John Lennon with Dolly Parton, but I get it.

President Biden’s policy on joint employment is already embracing the same theme, even before Marty Walsh gets confirmed as Secretary of Labor. The DOL ain’t wastin time no more. (And speaking of the Allman Brothers, if you haven’t yet seen the documentary Jimmy Carter: Rock N’ Roll President, it’s worth 96 minutes of your time.)

Late last week, the DOL announced it has submitted a new proposed rule for determining joint employer status under the Fair Labor Standards Act (FLSA). The text of the proposed rule has not yet been released, but here’s what we know:

1. The new rule would replace the regulations enacted by the Trump DOL in March 2020. The March 2020 regulation required actual control for a finding of joint employment and focused the joint employer analysis on four factors — right to hire/fire, supervision of work conditions or schedules, rate/method of pay, and control of personnel files. That test made it tougher to establish joint employment.

The March 2020 regulations are already the subject of litigation, and the Second Circuit Court of Appeals is hearing a case to decide whether the new rules are valid. That means the March 2020 rule could be on the chopping block no matter, with either the Second Circuit or the Biden DOL doing the chopping.

2. The new rule will be (just like) starting over. It will re-adopt an Obama-era joint employment test. But which one?

Option A:

Before the March 2020 rule requiring actual control, all that was need to be a joint employer was the right to control certain aspects of the relationship.

When using a staffing agency for staff augmentation, for example, there was a pretty high likelihood that would be joint employment, even if the staffing agency had exclusive control over the four factors highlighted in the March 2020 test — setting wages, setting schedules, controlling pay, and maintaining personnel files. At a minimum, the new rule will go back to that standard.

Option B:

But there’s a worse option that could be in the cards. Five states are bound by a 2017 federal appeals ruling that adopts a much broader interpretation of joint employment. In a case called Salinas, the Fourth Circuit ruled that two businesses are joint employers unless they are “completely disassociated” from one another. The Fourth Circuit covers MD, NC, SC, VA, and WV. That decision suggests that every borrowed labor situation might automatically be joint employment, since the two companies have a contractual “association” with each other.

The Salinas decision was based on an old regulation, on the books since 1958, that the March 2020 regulation eliminated and replaced.

Which version of joint employment will the new Biden rule seek to adopt? Or will the DOL come up with a new test entirely?

Either way, we know that the test for joint employment will change in 2021 or 22, and the new rule will make it much more likely that staffing agency relationships and other borrowed labor arrangements create joint employment.

While the specifics of the new test are not yet known, we know enough already to start to plan. Staffing agency agreements should be checked and revised to protect against joint employment liability. This post provides a few of my favorite tips.

There are plenty of steps that can be taken to protect against joint employment, so long as businesses plan ahead and draft their contracts carefully. Change is coming, but we’ve been down this road before. It’s (just like) starting over.

© 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. 

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Today’s Tip: Beware of Multi-State Issues (and Rudolf is a girl?!)

Neil deGrasse Tyson broke the news last week that Santa’s reindeer must be female, since they still have their antlers in the winter. Mind blown: Rudolf is a girl. #girlpower

It seems like should have figured that out earlier. Sometimes things are not as they seem. So let’s play some reindeer games.

Assessing independent contractors status isn’t always as it seems either. Do you pass the IRS Test? Congratulations, but that tells you nothing about whether your relationship meets state law tests. Did you win an unemployment claim on the basis that your contractor was not your employee? Congratulations, but that tells you nothing about whether your relationship has contractor status under federal wage and hour law.

To determine whether an independent contractor relationship is legitimate requires you to look at multiple tests across multiple laws across multiple jurisdictions.

Companies that retain contractors across multiple states should pay particular attention to the differences among multiple states and across multiple laws. The same relationship can be deemed employment under one test and independent contractor under another.

For example, in my home state of Ohio, the analysis of whether a worker is an independent contractor or an employee is subject to a long list of competing legal standards:

  1. Federal Income Tax: Right to Control (IRS factors)
  2. Ohio Income Tax:  Follows IRS
  3. ERISA, ADA, Title VII, ADEA: Right to Control (Darden Test)
  4. Affordable Care Act: Right to Control (Treasury Regs.)
  5. FLSA: Economic Realities Test
  6. NLRA: multi-factor hybrid/right to control test
  7. OH Unemployment (ODJFS): IRS old 20-Factor Test
  8. OH Workers Comp / Construction: Need 10 of 20 old IRS Factors
  9. OH Workers Comp / Other: Ohio Right to Control Test
  10. OH Discrimination (RC 4112): Ohio Right to Control Test

The complexity is similar in every state.  In Illinois, the list is about as long, but with different state law tests and standards:

  1. Federal Tax: Right to Control (IRS factors)
  2. ERISA, ADA, Title VII, ADEA: Right to Control (Darden Test)
  3. Affordable Care Act: Right to Control (Treasury Regs.)
  4. FLSA: Economic Realities Test
  5. NLRA: multi-factor hybrid/right to control test
  6. IL Unemployment: ABC Test
  7. IL Wage Payment & Collection Act: ABC Test
  8. IL Workers Compensation: Various factors, including control, relationship to company’s business
  9. But, if Construction, then Employee Classification Act:
    – Presumption is employee,
    – Then apply ABC Test,
    – Then apply 12-factor test to prove sole proprietorship or partnership is IC

And there are 48 more states just like these (but different).

So bottom line: Just like you can’t make assumptions about your reindeer’s gender based on its name, you can’t make assumptions about your contractor’s status based on what you call the relationship. You’ve gotta check the antlers — or the appropriate law.

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

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Discomfit a Bear? Here’s a Quick Tip To Improve Your Independent Contractor Agreements

In this story from the Illustrated Police News, 1877, we see the courageous exploits of a young lady from Runcorn, England, skillfully discomfiting a bear with her parasol. Now, I question whether this really happened as captioned. The caption says she punched the bear in the eye with her parasol, but this artist’s rendering depicts more of a body blow, so I’m not sure which to believe. But either way, as you can see, the bear was discomfited and this atypical encounter ended well.

In this instance, a parasol was more than a mere umbrella. It served as a defensive weapon.

The lesson here is that objects we take for granted can be used as a defensive weapon with some proper planning. That includes your independent contractor agreements.

Independent contractor agreements should not be generic, off-the-shelf documents. Every agreement is an opportunity to build your defense against a claim of independent contractor misclassification.

Think about all of the factors that go into determining whether someone is an employee or an independent contractor. For a refresher, you can review some earlier posts on Right to Control Tests and Economic Realities Tests. Also here.

On factors where are you do not exert control and do not need to exert control, put that in the contract. Put in the contract that the contractor controls these factors and you have no right to control them.

For example, do you care what time of day the contractor works? Do you care if the contractor retains helpers? Do you care whose tools the contractor uses?

If not, put that in the contract: The contractor decides when to work, whether to hire helpers, and what tools to use. There are dozens more factors like these to consider. The point is to customize your agreement so that it is defensive weapon to help fend off a claim.

Then go a step further and put in the contract that you have no right to control these decisions. Remember, the Right to Control tests generally focus on whether you have the right to control something, even if you don’t actually exercise that right.

If you use your agreement to memorialize the good facts—those that support independent contractor status—then you can turn that agreement into a defensive weapon.

The agreement might not help if confronted with a bear in Victorian England (“here, read this contract while I run!”), but it may help to discomfit an independent contractor misclassification lawsuit.

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

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Say Say Say: How Not to Bungle an Independent Contractor Relationship

Remember the 1983 song, Say Say Say, by Paul McCartney and Michael Jackson? “Say, say, say what you want. But don’t play games with my affection.”

The songs asks for some straight talk. Be direct. Say what you mean. Or as Michael says, “What can I do girl, to get through to you. Cause I love you, baby (baby).”

1983 was a memorable year for me for music. I had a cassette called CHART ACTION 1983 that was one of my favorites. It included songs from Dexy’s Midnight Runners, Adam Ant, the Stray Cats, Bonnie Tyler, and Golden Earring.

But it didn’t have Say, Say, Say, and that was fine by me because I don’t really like the song. If it was on CHART ACTION 1983, I’d have skipped it, but the old fashioned way: forward, forward more, a little more, oops too far, rewind, rewind, forward, got it. Hungry Like the Wolf.

“Say say say what you want” would have been good advice for a Pennsylvania agency that offered interpreter and transcription services. The agency tried to run its business with an independent contractor model, but failed to say say say the right things in its agreements.

A Pennsylvania court ruled that the agency had misclassified its interpreters as independent contractors. Under PA unemployment law, the interpreters were actually employees. (“You know I’m crying oo oo oo oo oo.”)

Let’s look at where the agency went wrong.

Bad facts, tending to support employee status: The interpreters had a set of policies and procedures they had to follow, including wearing name badges. The agency did the scheduling.

Good facts, tending to support contractor status: The interpreters are not supervised, reimbursed for their expenses, or provided benefits, training, equipment, or name badges. An interpreter could refuse work at any time.

Totally unnecessary bad fact: The interpreters had to sign a non-compete agreement. That’s evidence of employment because it restricts the interpreter’s ability to work for others as an entrepreneur would do. But it turns out that, in reality, the agency didn’t care if the interpreters worked for others, and many of the interpreters did work for others.

Even worse, the non-compete included language referencing an “existing contract of employment.” Oops. Poor choice of words when you’re trying to prove there was no employment relationship. I would bet that the agency just pulled this non-compete language off the internet, without having considered the legal implications. The court focused a lot of attention on the non-compete when ruling that the interpreters were really employees.

The non-compete was a self-inflicted wound. That misstep is a good example of why you can’t just pick template agreements off the internet and expect that they’ll be sufficient.

More bad facts were on the website: Another problem for the agency was its website, which described the extensive training provided to interpreters, referred to them as “new hires,” and indicated they were all required to undergo a final performance evaluation. These facts all suggest an employment relationship.

Pennsylvania unemployment law applies a two-part test for determining whether someone is an employee or an independent contractor. To be an independent contractor, the service had to prove that it did not exercise control (a Right to Control Test) and that the interpreters were “customarily engaged in an independently established trade, occupation, profession or business.”

This could have been done correctly. Because of the independent nature of an interpreter’s work, the agency probably could have set up legitimate independent contractor relationships. This case is a classic example of how a proactive legal review could have saved the day.

If the agency had asked a lawyer for help in setting up the business the right way, this case could have gone the other way. The agency could have eliminated the non-compete agreement (which it didn’t enforce anyway), modified the website to eliminate “new hire” language and to de-emphasize training, cut back on the specific training provided, and changed the name tag requirement to a more generic requirement to provide identification.

So to the song I say say say: You may have hit #1 in the U.S. that October, but I’m not the one who really loves you.

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

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Shout It Like a Helium-Filled Gator: Don’t Limit Your Arbitration Agreements to Work-Related Disputes

Fig. 3. Atmosphere exchange during the experimental procedure without handling the subject

A team of researchers studying the vocalizations of Chinese alligators have won an Ig Nobel Prize for their method. They put the gators in helium-filled tanks and observed variations in their calls.

Sign me up.

I want to write papers with sentences like this one: “High-energy frequency bands in the bellows of the Chinese alligator were shifted towards higher frequencies when the animal vocalized in the heliox condition.”

My writing, for better or worse, is more focused on agreements. Here’s something to remember when writing arbitration agreements.

One of the main benefits of an arbitration agreement is the ability to prohibit class action lawsuits. When using arbitration agreements with employees or independent contractors, don’t forget to include the class action waiver. (There are pros and cons to mandatory arbitration, but we’ll leave that for another day.)

Too often, the scope of arbitration agreements is too narrow. Many agreements require arbitration of work-related or employment-related claims only.

Go broader. Expand your range, but without using helium.

In this case, a group of drivers alleged that a rideshare app company mishandled a data security breach. The drivers tried to bring a class action.

The court instead required them to seek relief one-by-one, in individual arbitration actions. That’s because their agreements required them to arbitrate disputes with the company and prohibited class litigation. The arbitration agreement here was broad enough to cover data breach claims.

Quick side note on what the legal dispute was really about: The drivers argued that the agreements were unenforceable. They pointed to the transportation worker exception in the Federal Arbitration Act (FAA). The FAA generally protects the enforcement of arbitration agreements, but it doesn’t apply to transportation workers in interstate commerce. The dispute was whether drivers who pick up passengers at airports for local rides are acting on interstate commerce because the passengers and their luggage flew in from other states. The district court said no, that these local drives are not interstate commerce, and the Ninth Circuit Court of Appeals agreed.

For our purposes, the lesson here is to be thoughtful about the scope of claims subject to arbitration. Go broader than just work-related claims. A data breach can be an expensive class action to defend if thousands of people are affected. Any single individual arbitration, however, is probably not worth the effort for a plaintiff’s lawyer. The damages for an individual arbitration will be too small to make it worth pursuing.

(The “go broad” concept has limits, and there are some claims that should be carved out of arbitration agreements, so I don’t want to overstate the point.)

Anyway, be creative and thoughtful when drafting agreements. Be sure the scope of covered claims is sufficiently broad. Careful planning can avoid class actions — or just maybe it can win you an Ig Nobel Prize.

Bonus track: Here’s audio of a helium-induced alligator bellow.

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

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Cut Off This, But Not That! Here’s Today’s Independent Contractor Tip

In 1877, the Police News reported the story of a dancer’s amputated leg sold at auction. But the story might not be as it seems, says Dr. Bob Nicholson, who studies news clippings from the Victorian era and is a fun follow on twitter.

Cutting off legs might not be a good way to raise money, but cutting independent contractors off from certain privileges may save your busienss money.

Whenever possible, cut off contractors from doing things that link them to your business. They should appear to the public as independent businesses, which hopefully they are.

To prevent contractors from portraying themselves in a way that may make them seem like employees, consider adding a clause like this one to your independent contractor agreements:

Contractor shall not use the Company’s name or logo in any of Contractor’s marketing or publicity materials, on clothing or other attire, on business cards, on a website, on social media, or in any other manner, unless the Company has granted permission in advance, in writing.

Sometimes you need your contractors to display your company logo, such as if they are being sent to customers’ homes for an installation. In those circumstances, consider adding “INDEPENDENT CONTRACTOR” in prominent language on any clothing that includes your company’s logo or name.

Proactive steps like this can help bolster your defense against misclassification claims. For balancing tests like the Right to Control Test and the Economic Realities Test, every good fact helps, and every bad fact hurts. Put as many brick on the good facts side of the scale as you can.

And if things don’t work out, you can always use this neat trick with your parasol to keep away bears.

Thanks again, Dr. Bob!

 

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

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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.

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