Hold Your Fyre: Five Tips For Avoiding Misclassification When Using Social Media Influencers

In 2017, the Fyre Festival failed spectacularly after all sorts of social media influencers touted it as the must-attend party of the year. Documentaries on Hulu and Netflix tell the story in all its gory detail, and you can see the videos that hyped the event that wasn’t.

Despite that epic fail, the use of social medial influencers continues to be a powerful form of marketing. But when contracting with a social media influencer, beware. There are legal traps for the unwary.

For those of you who missed the social media influencer webcast on September 28, here are five tips to help prevent your social media influencer from being misclassified as your employee.

1. Whenever possible, contract with the influencers’ loan out company instead of the influencer as an individual. This is especially important if the influencer is a member of SAG-AFTRA and union pension and health contributions may be in play.

2. Limit control over things you don’t need to control. Yes, you can put parameters around the influencer’s messaging to protect the brand, and it’s ok to require the influencer to follow the FTC Guides, to avoid use of nudity or profanity, to avoid discriminatory or harassing language, and similar reasonable guardrails. But don’t get sloppy and start requiring the influencer to use your equipment or work from your facility. Be careful about open-ended contracts that are terminable at will. Don’t overreach in exerting control over when and where the. work is performed. Consider all of the Right to Control Test factors.

3. Remember that the law decides whether it’s employment, regardless of what the parties agree. And the Right to Control Test is not the only game in town. The Economic Realities Test will apply for determining worker status under federal wage and hour law and some state laws. More troubling, ABC Tests in California, Massachusetts, and other locations raise the bar significantly and make it much harder to maintain an independent contractor relationship. If the law says that it’s employment, then it’s employment. The labels you put in your contract don’t matter.

4. Avoid terminology that sounds like employment. “Retain” the influencer, not “hire.” “Terminate the contract,” instead of “fire.” Pay a “fee,” not a “wage.”

5. Pay by the project, not by the hour, whenever possible. Method of pay is a factor in many of the classification tests, and payment by the hour is one factor that’s suggestive of an employment relationship.

For more tips about how to properly engage a social media influencer, including how to make sure you follow advertising laws and avoid misclassification risks, tune in to the webcast.

You can watch it here on YouTube.

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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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Nontoxic Bullets? NLRB General Counsel Wants to Ruin College Football by Calling Athletes “Employees”

Johnnie Poe, Princeton footballer. NYPL Public Collection.

One of my favorite twitter accounts is @ACrimeADay, which reminds us of arcane things that are against the law. A few recent gems:

  • 18 USC §1865 & 36 CFR §2.16(f) make it a federal crime to make an unreasonable noise while a horse is passing by in a national park.
  • 42 USC §271(a) & 21 CFR §1250.44(b) make it a federal crime for an airline to provide a brush for the common use of passengers on a flight.
  • 16 USC §707 & 50 CFR §21.55(c)(2) make it a federal crime to kill a barn owl in Hawaii by shooting it, unless you use nontoxic bullets.

There are lots of ridiculous laws. If it’s up to the NLRB’s new General Counsel, we’re about to see another one — and it may ruin college football as we know it.

In a memo issued last week, the NLRB’s General Counsel and chief prosecutor, Jennifer Abruzzo, announced that her office now take the position that college student athletes are employees of their universities, with full rights to bargain collectively, strike, and file unfair labor practice charges.

Her analysis is based on a Right to Control Test. She thinks that universities control the working conditions of student-athletes in a way that makes them employees under the test. She explains this in the memo, if you care to read the details.

The memo also takes the position that universities’ use of the phrase “student-athlete” instead of “employee” is itself an unfair labor practice because it intentionally misleads these students employees into thinking that they do not have Section 7 rights. Her position is directly contrary to current Board law, established in Velox Express (discussed here).

And it gets worse. Because the NLRB has jurisdiction over private employers but not public ones, her position applies only to private universities, not public ones. That means — if her memo becomes law — that Northwestern’s football players are employees, but Ohio State’s are not.

And she sets up the NCAA as a joint employer, alleging that it too controls the working conditions of these students.

Abruzzo is a former union lawyer, so it’s not surprising that she subscribes to the worldview that everyone’s an employee, but for this to be the official prosecutorial position of the Board is inane. With Democratic Board appointees now holding a 3-2 majority on the Board, it feels like only a matter of time before the right case comes along and the NLRB rubber stamps her position as Board law.

Let’s imagine how this plays out in real life:

  • It’s the end of a long practice, and two players tell Coach they’re not going to run that last required wind sprint because they think it’s just too much. Coach says to run anyway because I’m the coach. Coach disciplines the players by not playing them or demoting them on the depth chart or whatever. Based on the memo, that might be an unfair labor practice because the employer is taking adverse action against employees for engaging in protected concerted activity.
  • Coach tells his team not to criticize the program publicly because we’re a team and we need to speak with one voice. Based on the memo, that could be an unfair labor practice because employers cannot prohibit employees from speaking out collectively about working conditions.
  • When the fifth- and sixth-string senior running backs refuse to show up for practice as a way of protesting Coach’s decision not to play them in last week’s blowout win, Coach tells them they’re off the team. Under the Abruzzo memo, that might be an unfair labor practice.
  • At a press conference, the athletic director is asked about team discipline and responds that these are “student-athletes” and not “employees” and they’ll do what Coach says and they’ll do it quietly, without objection, if they want to play. Under the Abruzzo worldview, that sounds like an unfair labor practice too.

Let’s play this out a little further. If the reason student-athletes are employees is because of the Right to Control Test analysis, then wouldn’t the same analysis apply to other laws that use the Right to Control Test? The Affordable Care Act and ERISA use Right to Control Tests. Could it become the law that student-athletes must be made an offer of coverage under ACA? Would the school have to allow the players to participate in employee retirement programs?

And what about the Economic Realities Test used for determining whether someone is an employee under the Fair Labor Standards Act (FLSA), which requires minimum wage and overtime? The Economic Realities Test is generally viewed as more expansive and inclusive than the Right to Control Test. If Abruzzo’s position is embraced by the NLRB and later affirmed by the U.S. Courts of Appeal, would that open the door for requiring private universities to pay student-athletes a minimum wage and overtime?

This is sounding like Absurdistan (which, by the way, it the title of a pretty entertaining book by Gary Shtenygart).

I’m making unreasonable noises just thinking about all of this. Good think I’m not in a national park with a horse nearby or I’d really be in trouble.

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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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Nowhere to Run: New Case Serves as Reminder That FLSA Misclassification Settlements are Very Public

I just got back from running in a 200-mile relay, Muskegon to Traverse City, with a group of college friends. I ran three legs of 4, 4, and 5 miles. I had the easiest set of three legs among the 12 runners, but I’m happy just to have finished. It was great to see everyone, and I was able to disconnect from work life for a few days.

So, what I’m saying here is, I had a better weekend than the guys I’m about to write about. And for them, there’s no running away from their problems.

In yet another exotic dancer case to hit the news, the performers at King’s Inn Premier Gentlemen’s Club in Massachusetts are about to score a $292,000 settlement in a claim that they were misclassified as independent contractors. A hearing to approve the settlement is scheduled for this week.

There seem to be a lot of exotic dancer cases in the annals of independent contractor misclassification, and the clubs seem to lose their fair share of these cases. This case, like most of the dancer cases, is a wage and hour case. The dancers claimed they were denied a minimum wage and overtime pay, in violation of the Fair Labor Standards Act (FLSA). The club claimed the dancers were independent contractors and therefore were not covered under the FLSA.

But why do you care about a strip club exotic dancers case? Two reasons:

  • First, the Economic Realities Test is alive and well, and it applies to all industries.
  • Second, any settlement of an FLSA lawsuit must be approved, and it becomes public record.

You can read more about the first point here, in a collection of posts about this test and how it is used to determine whether someone is an employee.

The second point deserves a bit more attention, though. Most types of litigation can be settled in a private settlement agreement. An FLSA case cannot be. The law requires the settlement of an FLSA case to be approved by a judge, and there is a public hearing at which the settlement terms are considered.

Once you get sued for an FLSA violation, it’s very hard to get out of it with anything resembling confidentiality. This is the kind of claim you want to avoid in the first place.

How do you avoid an FLSA claim when you have independent contractors?

  • Be proactive. Evaluate your relationships using the Economic Realities Test and see if they hold up.
  • Review your contracts and see if they can be adjusted to better memorialize the facts that support independent contractor status.
  • Consider obtaining representations from the contractors up front to determine whether they really do operate independently.

Don’t wait until its too late to take action. You can’t just run away from an FLSA case.

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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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Make Sure Your Social Media Influencer Isn’t Deemed To Be Your Employee (and Other Legal Tips) — Free Webinar on Sep. 28

More than 67% of US marketers will use some form of social media influencer marketing this year, according to emarketer.com. While I can’t vouch for the numbers, I do believe that putting numbers in my attention-grabbing lede makes you want to keep reading and, besides, we all know it’s a lot so does the exact number really matter anyway?

While top social media influencers include Cristiano Ronaldo, Justin Bieber, and Ariana Grande, there are also niche social medial influencers with more targeted audiences, such as the gluten-free or plant-based foods crowd.

Whatever your social media marketing strategy, engaging a social media influencer involves legal risks. Some of these risks are pretty intuitive, such as laws relating to testimonials. You need to learn those rules and follow them. Other risks are a bit more hidden, and that’s where I come in.

While your relationship with a social media influencer is intended to be an independent contractor relationship, you need to avoid exerting so much control that you risk the influencer being deemed your employee. Yes, the Right to Control Test applies here too.

You need to protect your brand, and your contract with a social media influencer should do that. But where do you draw the line? You need to install guardrails to protect the integrity of your brand, but if you exert too much control, it’s possible to convert your social medial influencer to your employee, entirely by accident.

Join me and Linda Goldstein, co-leader of BakerHostetler’s Advertising, Marketing and Digital Media team for our webinar on September 28, Influencer Marketing: A 360 Degree View of the Legal Risks.

We’ll discuss:

  • Recent industry trends in Influencer Marketing
  • Current regulatory risks and trends
  • Independent contractor misclassification risks

You can register here for free. 1.0 CLE credit is available.

Free Useless Tip: One surefire way to avoid independent contractor misclassification is to use a social media influencer that’s not human, and there are several. Dogs, cats, and even a South Korean avatar have all built loyal social media followings. In the webinar we’ll be focusing on the use of human influencers, but you’re welcome.

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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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How to Avoid Liability for an Independent Contractor’s Injuries (Hint: Don’t Throw Stones)

“The Wound was Bound,” 1912. From NYPL Collection.

Sometimes injuries can be reasonably expected, sometimes not.

A good example of when injuries can be expected is the annual Bagwal festival in northern India. This year’s festival was described by Indian media as “a low-key affair” with only 77 of the 300 participants sustaining injuries. Wait, what?

At Bagwal, participants divide into four clans and hurl stones at each other to please a deity. According to this report, “The fight continues until a priest determines that enough blood has been shed in honor of the goddess Maa Barahi and demands to stop the fight.”

A good example of when injuries are not expected is when you retain an independent contractor to perform some sort of work on your property. Sometimes there are known hazards on the property. Sometimes there are no reasonable safety precautions that can be taken to minimize the hazard. For example, suppose you retain a contractor to fix a known safety risk.

The question: When an independent contractor gets injured by one of those known hazards, who is liable?

The California Supreme Court recently addressed this question in a case with significant ramifications for business owners, property owners, and independent contractors.

The answer: The contractor is liable, not the property owner — but this assumes the contractor is properly classified as an independent contractor.

The rationale: Like in many states, California law presumes “that a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety.” This doctrine, known in California as the Privette doctrine, means that a hirer is typically not responsible for injuries suffered by an independent contractor.

The Privette doctrine makes sense. It arose out based on four basic assumptions:

  1. Hirers have no right to control an independent contractor’s work.
  2. Contractors can factor in the cost of safety precautions and insurance in the contract price.
  3. Contractors are able to obtain workers’ compensation coverage to cover any on-the-job injuries.
  4. Contractors are typically hired for their expertise, which includes knowing how to perform the contracted work safely.

There are two exceptions:

  1. A hirer may be liable when it exercises control over any part of the contractor’s work and negligently exercises that control in a way that contributes to the injury.
  2. A landowner who hires an independent contractor may be liable if the landowner knew, or should have known, of a concealed hazard on the property that the contractor did not know of and could not have reasonably discovered, and the landowner failed to warn the contractor of the hazard.

In Gonzalez v. Mathis, the court was asked whether a third exception should be recognized when injuries “result from a known hazard on the premises where there were no reasonable safety precautions it could have adopted to avoid or minimize the hazard.”

The court declined to recognize this exception, holding that in this situation, the contractor is liable, not the hirer. Rules may vary in other states.

What should businesses do to protect themselves, in light of this ruling?

  1. Make sure your contractors are properly classified as independent contractors under the applicable legal test. California uses an ABC Test for making this determination. Other California laws, such as Labor Code 2750.5 and 2810.3 complicate the analysis.
  2. Make sure your contractors are licensed and insured. Licensing by the Contractors State Licensing Board is required in California for anyone who contracts to perform work on a project that is valued at $500 or more for combined labor and materials costs.
  3. Do not exercise control over your contractors. Defer to their expertise.
  4. Disclose known hazards, especially those that are not readily visible.

And if you’re looking for repair work to be done at or near a Bagwal festival, don’t forget warn your contractor about the risk of flying stones.

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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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The Abruzzo Agenda: Like a Good Hyena Story, the NLRB Giveth Then Taketh Away

Not a dog.

I had a great intro all ready for this week. I really did. WXYZ.com reported last week that Monica, a Detroit woman, took home a free puppy, only to learn days later that it was not a puppy at all, but a hyena.

I was about to share this great piece of investigative journalism with you when I was hit with this surprise: The woman’s story is now in doubt, and WXYZ has retracted the story. Thanks to the Wayback Machine, you can read the original story here and (to my great disappointment, because I so badly wanted this to be true) the retraction here.

Sometimes we are given something that seems wonderful — say, a puppy, or even a fun story about a woman who mistook a hyena for a puppy — but then it gets taken away. For all of you who were pleased with any NLRB pro-business decisions over the past four years, get ready to see those taken away too.

Last week new NLRB General Counsel Jennifer Abruzzo issued a Memo listing roughly 40 decisions and principles that she’d like to undo. She has a more diplomatic way of saying it — let’s just say we’ll “carefully examine” these. But expect many of these principles to be toast, now that the Board features a 3-2 Democratic majority.

You can see the full list here, but I’ll focus on three:

(1) “Cases involving the applicability of SuperShuttle DFW,” a case that made it easier to be classified as an independent contractor. You can read my post about SuperShuttle here.

(2) “Cases involving the applicability of Velox Express,” a case in which the NLRB ruled that independent contractor misclassification, by itself, is not an automatic unfair labor practice. You can read my post about Velox Express here.

(3) “Cases involving the applicability of UPMC,” which relates to the standard for the Board to accept settlements voluntarily entered into by the parties. What she’s really talking about here is the McDonald’s franchise joint employer case, in which her predecessor as NLRB General Counsel settled a case against McDonald’s that she (and an Administrative Law Judge) didn’t think should have been settled. The NLRB eventually approved the settlement. Here is an amicus brief I wrote for the Restaurant Law Center in that case, arguing that the settlement should be approved.

The General Counsel for the NLRB is the equivalent of its chief prosecutor. These are Abruzzo’s priorities. With a sympathetic 3-2 majority on the Board, you can be sure that many of these desired changes will take place.

Like a good hyena story, the pro-business Board decisions from the last four years aren’t likely to last.

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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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Now is the Time to Add These Safe Harbor Clauses to Your Independent Contractor Agreements

Image by Luca Falvo from Pixabay

I just finished reading The Longest Day, the 1959 book by Cornelius Ryan that tells the story of the D-Day landing from Allied, French, and German perspectives. The book covers June 6, 1944 and the days leading up to it, but it doesn’t get into what happened next. To facilitate supply lines into Europe right after D-Day, the British built two artificial harbors off the Normandy coast. Mulberry Harbours A and B allowed for the transport of up to 7,000 tons of vehicles and supplies to the mainland each day.

A harbor is a place where ships can seek shelter from the open ocean. Switching our focus to peacetime and the law, a “safe harbor” is the legal term for a provision that protects against liability if you meet certain conditions. No ships are required. Know the required conditions, and you can find shelter from a legal storm.

Two states recently passed laws that create safe harbors against claims of independent contractor misclassification.

Businesses using independent contractors in West Virginia and Louisiana should update their contracts immediately to take advantage of these new statutes.

Each state’s law provides a list of conditions that, if met, will make someone an independent contractor, providing a safe harbor against claims that these workers are misclassified and should be employees. The LA law creates a presumption of contractor status; the WV law is conclusive.

One of the conditions in WV, for example, is that the written contract “states…that the person understands” a list of five specific facts. The contract needs to “state” these five things. The WV law has other requirements too.

The LA law requires that 6 of a possible 11 conditions are met to fall within the safe harbor.

Other states are considering similar laws. Missouri and North Carolina are considering similar bills. Oklahoma was headed down the same road during the last legislative section but has not yet passed a bill.

Businesses using independent contractors in these states should amend their agreements to take advantage of these safe harbor opportunities.

At a time when the federal government is pledging to crack down further on independent contractor misclassification, it’s important to have contracts that are built to withstand classification challenges by any governmental body. Even under federal law, which doesn’t have these safe harbors, these recitations can be helpful when trying to meet the Right to Control and Economic Realities Tests used in federal law and in most states.

Your agreements with independent contractors provide an opportunity to build your defense against claims of misclassification. They should not be treated as a mere formality.

You want to be able to point to your agreements as Exhibit 1 in your defense against a misclassification claim. Play offense, not defense. Adding the WV and LA clauses — and even the proposed NC and MO clauses — can go a long way toward protecting your independent contractor relationships.

You might not be into reading books about World War II and that’s ok. But please read your contracts carefully. Now is a great time to amend and improve 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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Like Being Thrown on a Trotting Horse? This Company is Trying Rideshare without Independent Contractors

In 18th Century Europe, common methods for trying to revive drowning victims included throwing the victim onto a trotting horse, dunking in freezing water (ironic?), and my personal favorite, blowing tobacco smoke into the rectum.

These were creative ideas and sometimes they actually worked. The bouncing motion from being on a trotting horse could force air in and out of the lungs, like modern CPR. Tobacco smoke contains nicotine, which causes the brain to release epinephrine, which helps to stimulate the heart to contract.

It’s fun now to look back at how people tried to solve problems when they didn’t know what would happen.

The biggest unknown in the world of independent contractor misclassification is what would happen if rideshare and delivery companies were forced to reclassify all drivers as employees. A well-funded startup in Dallas is attempting to find out.

As reported here, a new rideshare service called Alto just completed a $45 million round of Series B funding. Alto’s model is to use all W-2 drivers and company-owned vehicles. The service currently operates only in Dallas, Houston, and Los Angeles, and has announced plans to switch to all-electric vehicles.

Will it work? Who knows.

Is it a viable business model? Who knows.

But in some ways, it’s a test case to see how an industry dominated by the independent contractor model might operate if forced to use all W2 workers. Yes, I know the taxi industry is another comparable. But it hasn’t exactly thrived since the emergence of rideshare. I’m pretty sure that’s not the model that rideshare would look to if force to pivot.

As the old proverb goes, necessity is the mother of invention. For those keeping score at home, Mothers of Invention was also the name of an experimental rock band in California once fronted by Frank Zappa and which featured tracks such as “My Guitar Wants to Kill Your Mama.” But that’s for another day.

For now, the rideshare industry continues to operate with its independent contractor model under siege. Widespread conversion of driver contractors to employees would be difficult and would introduce massive disruption in the industry. We’ll see what happens. In the meantime, let’s continue to innovate. Sometimes, even being thrown on a trotting horse can be helpful.

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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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Portable Benefits: Soon to Be Available for Mass. Independent Contractors?

This article in The Fox Magazine lists five things you can buy that are portable, even though you wouldn’t think they could be. The list includes toilets, massage chairs, saunas, neck fans, and bedrooms. The description of a portable bedroom goes like this:

Another brilliant innovation from the country that brought us the toilet in a suitcase, you can now buy a portable bedroom which comes folded up in a series of cabinets that look just like regular closets and dressers. Simply open the cabinet and fold out your bed for a super comfortable night’s sleep.

Um, no thanks.

If this article is revised next year, one surprising addition to the list could be Health Benefits for Massachusetts Independent Contractors. A new bill, inspired by California’s Prop 22, has been introduced in the Massachusetts legislature. To my surprise, the three co-sponsors are Democrats.

The bill, H. 1234, would create a exception to the strict ABC Test in Massachusetts, but only in the rideshare and delivery industries.

If the bill passes, rideshare and delivery platform companies would be required to offer occupational accident insurance and pay into a portable benefit account for drivers.

In exchange for doing so, these companies would gain assurance that drivers on their platforms are independent contractors under Massachusetts state law. The normal ABC Test would not apply. Platform companies would also be required to follow a few other basic guidelines in their interactions with drivers, including that:

  • Drivers can decide when to work and not work;
  • Drivers’ access to the platform cannot be terminated for declining a specific rideshare or delivery request;
  • Drivers can provide services on multiple platforms; and
  • Drivers can also work in another lawful occupation or business.

The bill is supported by the Massachusetts Coalition for Independent Work (and, of course, by the gig companies), and it is opposed by the Boston Independent Drivers Guild.

If passed, this would mark a significant exception to the strict ABC Test in Massachusetts, which currently presumes all working relationships to be employment, unless:

(A) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and 

(B) the service is performed outside the usual course of the business of the employer; and, 

(C) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.

Unlike California’s AB 5 (later rewritten as AB 2257), the Massachusetts law does not currently have exceptions for certain industries. Rideshare and delivery services would be the first industries carved out of the Massachusetts ABC Test.

The bill is in the early stages of being considered. It has been referred to the Joint Committee on Financial Services for further consideration. We’ll keep an eye on this one. It’s much more intriguing to me than a portable bedroom or sauna.

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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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Biden Plan: Independent Contractor Misclassification Will Be An Enforcement Priority

Money
Get away
You get a good job with good pay and you’re okay
Money
It’s a gas
Grab that cash with both hands and make a stash
New car, caviar, four star daydream
Think I’ll buy me a football team

Pink Floyd just gets it. When I was a young lawyer, someone described civil litigation to me as just moving piles of money from one party to another. But that cynical view tells only part of the story. It excludes the emotion, frustration, stress, and workload involved in defending disputes and in dealing with the consequences, which can include destroying an entire business model.

For businesses making widespread use of independent contractors, all of these concerns are about to get worse.

President Biden’s proposed FY2022 budget includes expanding resources to combat independent contractor misclassification. The Administration’s “commitment” to combatting misclassification is spelled out pretty unambiguously on page 15:

The Administration is also committed to ending the abusive practice of misclassifying employees as independent contractors, which deprives these workers of critical protections and benefits. In addition to including funding in the Budget for stronger enforcement, the Administration intends to work with the Congress to develop comprehensive legislation to strengthen and extend protections against misclassification across appropriate Federal statutes.

The President’s proposal includes $14.2 billion for DOL enforcement efforts, including to “address the misclassification of workers as independent contractors.” This represents a $1.7 billion increase from 2021.

Expect the Department of Labor to place much greater scrutiny on independent contractor relationships than during the Trump Administration. The nomination of David Weil to head up the Wage and Hour Division signals that the President is serious about this enforcement priority. Weil served in the same role under Obama, and he made independent contractor misclassification a focal point of his enforcement efforts.

If your independent contractor arrangements have not been closely examined recently, it’s time for a check up. $14.2 billion for enforcement efforts is a lot of money. I think I’d buy me a football team.

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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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