“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!

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

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Coronavirus & Getting Back to Work, in Four Pictures

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Socially irresponsible. Not someone I could do business with.

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Reckless, dangerous, thoughtless.

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Obviously these people are trying to kill me.

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Mask. Gloves. The ideal coworker?

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

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Your One-Stop COVID-19 Legal Resource Page

394D0BE6-B07C-41CB-83F4-EBF385E68650That’s how I feel, right about now.

COVID-19 has been keeping me incredibly busy, with all the new federal laws, regulations, guidance, state orders, and general mayhem. So I’m trying to follow my dog Zippy’s good example this weekend to get some rest.

While I nap, please check out the expansive resource that our team compiled at BakerHostetler’s COVID-19 Resource page. 

See you soon.

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

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When 500 Isn’t Necessarily 500: How to Count Employees Under the Families First Law

As you know by now, the Emergency FMLA and Emergency Paid Sick Leave provisions in the Families First Coronavirus Relief Act apply only to employers with fewer than 500 employees. But lots of questions have arisen about how to count.

For those who need help counting, here’s a helpful resource:

But for those of you counting employees instead of bats, let’s try this instead.

Question #1:  Do temps count? 

Answer:  Are we talking about feelings here? Because if we are, then everyone counts. You’re a winner! And you’re a winner! And you’re a winner!

Ah, but do they count toward the 500-employee threshold under Families First? Well that depends on whether they are joint employees of your business and the staffing firm.

As of last year, the answer for staffing agency temps was most often yes. But in January 2020, the DOL changed the test for how to determine whether someone is a joint employee under the Fair Labor Standards Act (FLSA). While there are different tests for determining joint employment, the one that matters for the Families First law is the FLSA test.

You can read more about the new DOL test here.

Question #2: Do part-timers count?

Answer: Yes. Count all part-time and full-time employees. Part-timers are people too. See, Feelings, Morris Albert (1975). Skip to 0:45 if you want to skip the instrumental intro.

Fun fact: In the late 80s, when you were arguing with your friends over which is the best Duran Duran song (answer: none), French songwriter Loulou Gaste successfully sued Albert for plagiarism, persuading a jury that Albert based the song on Gaste’s 1957 chart-topper “Pour Toi.”

Question #3: Do you aggregate employees across multiple subsidiaries?

Answer: Generally no. The default is that each subsidiary is its own employer. Divisions of a single subsidiary are aggregated.

But there are some situations when subsidiaries are aggregated. A conglomerate consisting of several different subsidiaries can a “single integrated employer,” in which case, you add the numbers together. We determine “single integrated employer” status by looking at four main factors:

  • Common management;
  • Common ownership;
  • Centralized control over labor relations and personnel; and
  • Interrelation of operations.

The more there exists common control, there more likely there is a single employer. There are many subfactors that also go into the analysis, and the most important factor tends to be centralized control over labor relations and personnel.

This is a difficult analysis, and there can be consequences to being a single integrated employer that go beyond Families First. If you think this applies to your company, proceed cautiously and seek legal advice.

Question#4: If I’m stuck home because of coronavirus, where can I find more helpful videos featuring The Count?

Answer: Ummm … this is where I sign off.

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

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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.

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© 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!  

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