It’s Valentine’s Day. You and your sweetie want to get away for the weekend. Your high school offspring will stay home. They seem responsible, promise not to break the law, and promise if they break anything they will pay for it. So you’re good, right?
Come on, wake up. Have you seen Risky Business? American Pie? House Party (very underrated movie, by the way)? Continue reading
The FMLA is full of traps for companies who use staffing agency workers, both for staff augmentation and temp-to-hire. Here are a few of the most common mistakes and how to avoid them:
photo credit: ransomtech Chimney Bluffs State Park via photopin (license)
1. Mistake: Not counting staffing agency time as service time, when determining whether the worker has worked for 12 months.
Tip: Staffing agency time counts. Add staffing agency time plus regular employee time to determine whether the worker has 12 months of service time. Accumulate all time worked during the past seven years. Continue reading
In August 2015, the NLRB rewrote the book on joint employment, declaring in the Browning-Ferris case that the right to exercise minimal control, even if not actually exercised, was enough to create a joint employment relationship. (Read more here.) Previously, joint employment under the National Labor Relations Act (NLRA) required the actual exercise of a meaningful level of control.
But what’s happened since then? What happens next? What should employers expect in 2017 regarding joint employment under the NLRA?
The Economic Realities Test seeks to determine whether, as a matter of economic reality, the worker is reliant on the hiring party, or is in business for him/herself.
[UPDATED 10/9/2021, 3/15/22: See Notes in red, below.]
The Fair Labor Standards Act (FLSA) uses an Economic Realities Test to determine whether a worker is a contractor or an employee. If the worker is an employee under this test, then the federal minimum wage and overtime rules apply, subject to any exemptions. This test is also used to determine who is an employee under the Family and Medical Leave Act (FMLA). Continue reading
The IRS uses a Right to Control Test to determine whether a worker is an employee for tax purposes.
If the employer has the right to control the worker, that individual is deemed an employee and the company is subject to employment tax obligations. If the company does not exercise control over the worker but instead gives that worker significant independence, then the worker is generally viewed as an independent contractor. The more control and supervision by the employer, the more likely the worker will be deemed an employee.
Let’s start with some basics. Although there are many tests for determining whether a worker is an employee, the most common types of tests are Right to Control Tests.
These tests seek to determine who has the right to control the means and manner by which work is performed. If the company has more control, the worker is generally an employee. If the worker has more control, the worker is more likely an independent contractor. That’s an overstatement, but it captures the gist of the issue.
With a finding of worker misclassification, the workers you thought were not your employees are suddenly deemed your employees. What does that mean practically? It means that you have not been complying with all of the laws that apply to employees.
Once upon a time, it was easy for companies to know who their employees were. Not so much anymore.
With the rise of the gig economy and other creative workforce arrangements, the lines between employee and non-employee have blurred.
Companies often prefer the flexibility of retaining non-employee workers. These relationships come in many varieties — independent contractors, consultants, staffing agency workers, outsourced vendors, etc. Many workers prefer these flexible relationships too. But a growing chorus of government agencies and class action plaintiffs have begun to cry foul. Continue reading
