independent contractor

file101235857424For the last six years, you haven’t seen much on this blog about changes to federal employment laws because, well, there just weren’t any.  What we DID see, however, were changes to regulations and enforcement orders.

Nearly six months into the new Trump administration, we’re now starting to see significant shifts in the federal regulatory scheme too.

A lot of national employment law blogs have been starting to recap them so I’m not going to go too in depth here. Among the changes? A death-knell to the persuader rule, and, earlier this month, a pullback of guidance on joint employment and independent contractor rules.   And it looks like the overtime rule changes are still in limbo as well, with the DOL “rethinking” such rules in news articles this week.

You don’t need to have a law degree to understand that these changes will favor companies.

Last night too, the Trump administration named the final member of a new National Labor Relations Board who will, no doubt, start rolling back other labor law decisions that have favored employees and labor unions as well.

But what will the impact be in Connecticut?

It’s still a bit early to tell, but I think the impact may be muted in some ways. After all, we have a CONNECTICUT Department of Labor that still marches to its own drum.  For example, it has taken a pretty aggressive view on who is (or is not) an employee vs. an independent contractor.

Indeed, as I’ve discussed before, the Obama-era rule changes might have, in fact, helped level the playing field for some Connecticut employers who have felt that they have had to comply with stricter Connecticut rules which made them less competitive nationwide.  With the rollback of some of these rules at the federal level, Connecticut’s higher standards may come back into play more often.

That may be overstating it a bit, but Connecticut employers will have to play catchup to figure out the patchwork of federal and state regulations and the interplay between them.

Perhaps it is more fair to say that things are still shaking out this year for Connecticut employers.  The General Assembly session that just ended was more quiet than most.  But at a national level, employers shouldn’t be too quick to make too many changes because there seems to be many more aspects in flux than in years past.

The only thing I’ll predict for the next six months is that we have all the ingredients in place for a wild roller coaster ride with more changes than we’ve seen in some time.

So buckle up.   Things are just getting interesting.

justiceI’m back with news of a relatively big decision today from the Connecticut Supreme Court.

In the decision, the Court clarified an important question that the Connecticut Department of Labor had been pushing hard.  It will be welcome news for businesses in the state.

The issue was this: If an independent contractor (and his or her business) works ONLY with one company, can that person still be an independent contractor?

The Court said yes, that person CAN be. But it is important to note that it does that mean that the person will ALWAYS be an independent contractor. Instead, the court will continue to apply the ABC test — balancing several factors. (I’ve discussed the test in a prior post here.)

The case, Southwest Appraisal Group v. Administrator, Unemployment Compensation Act can be downloaded here.  Note that it will not be “officially released” until March 21, 2017.

The only issue in the case was whether the putative employee was “customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.”

How to make that determination? By looking at the “totality of the circumstances” which also include another series of tests.

Here, the court at least is helpful in setting up what those factors are.   According to the Court, “factors to consider in evaluating the totality of the circumstances under part
C include:

  1. the existence of state licensure or specialized skills;
  2. whether the putative employee holds himself or herself out as an independent business through the existence of business cards, printed invoices, or advertising;
  3. the existence of a place of business separate from that of the putative employer;
  4. the putative employee’s capital investment in the independent business, such as vehicles and equipment;
  5. whether the putative employee manages risk byandling his or her own liability insurance;
  6. whether services are performed under the individual’s own name as opposed to the putative employer;
  7. whether the putative employee employs or subcontracts others;
  8. whether the putative employee has a saleable business or going concern with the existence of an established clientele;
  9. whether the individual performs services for more than one entity;
  10. and whether the performance of services affects the goodwill of the putative employee rather than the employer.

The court does add some additional guidance here noting that, “We emphasize that particular caution is necessary in considering the relative size or success of the putative employee’s otherwise independent business in connection with the totality of the circumstances analysis under part C.”

This is a big decision for employers who also use independent contractors.  Businesses should again review their relationships with these independent contractors to try to satisfy as many of the factors outlined above.

IMG_7083My colleagues, Clarisse Thomas, Keegan Drenosky and I have been busy keeping track of the developments in New York which may impact Connecticut employers with cross-border business.  Here are two of the most recent developments.

Freelance Isn’t Free

The New York City Council has enacted and the Mayor has signed a new law applicable to employers who hire contractors for work in New York City.

The “Freelance Isn’t Free Act”, which goes into effect on May 15, 2017, will formalize the relationship between the freelance worker and the hiring party, and require the parties to sign a written agreement.  Freelancers are considered to be those individuals or one person corporations who offer their services to the public.

Under the new law, if the arrangement with the freelancer involves payment that is $800 or more in a 120 day period, there must be a written contract.

A sample contract is being posted on the City’s Office of Labor Standards’ website.

The contract must have 1) the name and mailing address of both parties; 2) an itemization of the services being provided; 3) the value of the services; 4) the rate and method of compensation; and 5) the date payment is to be made.  If no date of payment is specified then payment must be made no later than 30 days from the completion of the services.  After the price is agreed upon, the hiring party is prohibited from requiring as a condition of timely payment that the freelancer accept anything less than the contracted amount.  Each party must retain a copy of the contract.

The City has also established a complaint procedure to resolve disputes, while giving the freelancer the right to bring a lawsuit for damages, costs and attorneys’ fees.  There are statutory damages of $250 if the freelancer only prevails on a claim that no written contract was executed.  However, the freelancer can recover additional damages in certain circumstances equal to the value of the contract, plus the value of the services, attorneys’ fees and costs.

In addition, civil penalties of up to $25,000 can be imposed on any hiring party who is found to have engaged in a “pattern or practice” of violating the law.

Because this law applies equally to both indivual employers and companies, care must be taken by anyone hiring a freelancer to ensure that a contract is in place if the fees at issue are $800 or more.

Ensuring Pay Equity

On January 9, 2017, Gov. Cuomo signed Executive Order No. 162, which is an Order for “Ensuring Pay Equity by State Contractors.”  This is an effort to ensure that there is no pay discrimination based on gender, race and ethnicity.

The Order requires state contractors (and their subcontractors) to specifically set forth the job title and salary of all the employees who are working directly on a State contract or, if they cannot be separately identified, then all the contractor’s employees.  This information is in addition to existing equal opportunity information already required to be submitted.

All State contracts, agreements and procurements executed on or after June 1, 2017 will contain this requirement.

 

Late this morning, the Connecticut Supreme Court released one of its most important decisions on employment law in years. I’ve been talking about it prior posts but its decision is a welcome surprise for employers who feared the worst. 

Because I’m out of the office for a few days, I’ve asked my colleague Chris Engler to give a brief recap.  My thanks to him.   We will have more in the upcoming days. 

The long-awaited decision in Standard Oil v. Administrator, Unemployment Compensation has arrived, and it brings good news for employers.

As you might recall, the Board of Review of the Employment Security Appeals Division had found that certain workers were employees of Standard Oil instead of independent contractors. The Board of Review’s analysis concluded that all three prongs of the ABC test rendered the workers to be employees.

The Connecticut Supreme Court has disagreed. Regarding part A, which focuses on the employer’s direction and control over the workers, the Court relied on the fact that the workers owned their own tools and vehicles, were independent licensed and certified, and were not supervised at their worksites by a representative of Standard Oil. As the Court further noted, “the installers/technicians were free to accept or reject any assignment offered to them without adverse consequences.”

Turning to part B of the test, which looks at whether the work was performed at the employer’s place of business, the Court looked at the case law from numerous states to guide its analysis. Its ultimate conclusion was that “the meaning of ‘places of business’ in the present context should not be extended to the homes in which the installers/technicians worked, unaccompanied by the plaintiff’s employees and without the plaintiff’s supervision.” (The “plaintiff” here was Standard Oil, the employer.) The Court specifically stated its goal of avoiding a broad interpretation of this part of the ABC test.

This decision is pleasant news for employers, especially those who use independent contractors to visit and service customers’ sites. It also suggests that the Supreme Court is taking a firmer stance against the Employment Security Division’s broad interpretations of who is eligible for unemployment benefits.

Employers who use independent contractors should breathe a sigh of relief.  But employers who use them should be sure to follow legal advice to make sure the relationships can hold up under court scrutiny

Governor Malloy with current CTDOL Commissioner Sharon Palmer

You’ve no doubt heard lots about how the U.S. Department of Labor is cracking down on independent contractors.  I’ve recapped it before and my former colleague, Jonathan Orleans, has a new post regarding Uber & electricians.

But in my view, there is a larger, more important battle now being fought in Connecticut and you may not be aware of it.  I touched on it briefly in a post in July but it’s worth digging a little deeper.  Disappointingly, I have not seen anything written about this in the press (legal or mainstream).

A case recently transferred to the Connecticut Supreme Court docket threatens to cause lots of havoc to company usage of independent contractors in Connecticut. The Connecticut Department of Labor has taken an aggressive stance in the case which is leading to this big battle.

The case is Standard Oil of Connecticut v. Administrator, Unemployment Compensation Act and is awaiting oral argument.  You can download the state’s brief here and the employer’s brief here.  The employer’s reply brief is also here.

The employer (Standard Oil) argues in the case that it uses contractors (called “installers/technicians”) to install heating oil and alarm systems and repair and service heating systems at times of peak demand.  The state reclassified the installers/technicians as employees and assessed taxes and interest.  At issue is the application of the ABC Test which is used in Connecticut to determine if these people are employees or independent contractors.

As explained by the CTDOL:

The ABC Test applies three factors (A, B, and C) for determining a worker’s employment status. To be considered an “independent contractor,” an individual must meet all three of the following factors:
A. The individual must be free from direction and control (work independently) in connection with the performance of the service, both under his or her contract of hire and in fact;
B. The individual’s service must be performed either outside the usual course of business of the employer or outside all the employer’s places of business; and
C. The individual must be customarily engaged in an independently established trade, occupation, profession or business of the same nature as the service performed

In the Standard Oil case, the employer is challenging the findings on various elements of this test. One of them – Part B , the “places of business” — is potentially far-reaching, according to the briefs filed in the case.  The issue is whether the customers’ homes are “places of business”; if they are, then the consultant cannot be said to be performing services “outside” the employer’s places of business.  The employer argued that viewing customers’ homes as places of business “does nothing to further the Act’s purpose and its practical implications are damning to Connecticut industry….”

Indeed, the employer argues that “it will be impossible for [the employer]-or any Connecticut business–to ever utilize the services of an independent contractor.”

Continue Reading The Real Battle over Independent Contractors and the ABC Test In Connecticut

Time to find your happy place.
Time to find your happy place.

Whatever happened to summer vacation? You remember, that downtime, when nothing much happened?

First, there were new proposed OT rules. Then, word came out EARLY (I got an alert at 6a!) today that the U.S. Department of Labor issued new “guidance” that will try to limit the misclassification of employees as indpendent contractors.

The goal is nothing less than ensuring that most of these workers qualify as employees under the federal Fair Labor Standards Act.

Here’s the key quote:

In sum, most workers are employees under the FLSA’s broad definitions… The very broad definition of employment under the FLSA as ‘to suffer or permit to work’ and the act’s intended expansive coverage for workers must be considered when applying the economic realities factors to determine whether a worker is an employee or an independent contractor.

It states elsewhere:

This Administrator’s Interpretation first discusses the pertinent FLSA definitions and the breadth of employment relationships covered by the FLSA. When determining whether a worker is an employee or independent contractor, the application of the economic realities factors should be guided by the FLSA’s statutory directive that the scope of the employment relationship is very broad. This Administrator’s Interpretation then addresses each of the factors, providing citations to case law and examples. All of the factors must be considered in each case, and no one factor (particularly the control factor) is determinative of whether a worker is an employee. Moreover, the factors themselves should not be applied in a mechanical fashion, but with an understanding that the factors are indicators of the broader concept of economic dependence. Ultimately, the goal is not simply to tally which factors are met, but to determine whether the worker is economically dependent on the employer (and thus its employee) or is really in business for him or herself (and thus its independent contractor). The factors are a guide to make this ultimate determination of economic dependence or independence.

I’ve talked about the economic realities test before.  This not a new issue.

In fact, the USDOL had a fact sheet in 2014 stating almost the exact same thing.

But the USDOL’s new “interpretation” is certainly going to force employers to take a new look at their relationships to determine whether independent contractors should be better classified as employees.  And it’s going to raise some questions on enforcement as well.

So, to remind you, what are those factors under the “economic realities” test?

  1. Is the work an integral part of the employer’s business?
  2. Does the worker’s managerial skill affect the worker’s opportunity for profit or loss?
  3. How does the worker’s relative investment compare to the employer’s investment?
  4. Does the work performed require special skill and initiative?
  5. Is the relationship between the worker and the employer permanent or indefinite?
  6. What is the nature and degree of the employer’s control?

But, and here’s where we all need to take a deep breath, this type of analysis isn’t all that new or surprising.  Courts have been using it for a while.  And it shouldn’t cause you to drop everything you’re doing today to look at this.

In fact, if you’re in Connecticut, I would actually suggest taking an even deeper breath because the issue is even more complicated than that.

There is a case now pending at the Connecticut Supreme Court — Standard Oil of Connecticut v. Administrator, Unemployment Compensation Act, that is examining whether certain contractors are “employees” under a different test — the ABC Test, and the proper application of that test under Connecticut’s own misclassification laws).

As explained by the CTDOL:

The ABC Test applies three factors (A, B, and C) for determining a worker’s employment status. To be considered an “independent contractor,” an individual must meet  all three of the following factors:
A. The individual must be free from direction and control (work independently) in  connection with the performance of the service, both under his or her contract of hire and in fact;
B. The individual’s service must be performed either outside the  usual course of business of the employer or outside all the employer’s places of business; and
C. The individual must be customarily engaged in an independently established trade, occupation, profession or business of the same nature as the service performed

Yes, in addition to the USDOL’s “Economic Realities” test, the Connecticut Department of Labor uses a different test for unemployment compensation purposes named the “ABC” test.

And don’t even get me started on the IRS’s “20 factor” test.

Are you in your happy place yet?

Maybe it’s time for that vacation after all.

Or, if you’re an employer, just take this latest news in stride. If you have independent contractors, the guidance is really just another reminder that the use of these contractors continues to be heavily disfavored by government agencies.

But if you’ve been reading this blog (see this post, for example, from 2010), you’ve known that, right?

The Connecticut Appellate Court released three significant employment law decisions on Monday — one of the busiest days in recent memory for the court.

For employers, the cases are a mixed bag but do provide some useful practice pointers.

City Sheriff Was Not an “Employee” Entitled to Statutory Protection 

In Young v. Bridgeport, the Court ruled that a plaintiff could not proceed with his whistle-blower retaliation claims because he was an independent contractor, and not an employee. Because only “employees” can bring a cause of action under Conn. Gen. Stat. 31-51m and 31-51q (claims for whistle blowing and free speech protection), the court lacked jurisdiction over the claim.

So what was the Plaintiff’s position? He was a City sheriff, elected to hold office for a term of two years, and had held the position for approximately 18 years.  Notably, City sheriffs have no affirmative duties, have no scheduled work hours or office space in a city building, but may serve process on behalf of the city, private entities or even individuals.  This, in the court’s view, was not enough to satisfy the employee-control test outlined by the Court in 2004 in the Nationwide Mutual Ins. Co. v. Allen case.

For employers, it’s another reminder of the importance of clear rules of who is an employee and who is an independent contractor.  It can be the difference between a claim going forward and a claim being dismissed.

Failure to Return Personnel Belongings Promptly May Be Retaliatory

In Eagen v. CHRO, an UConn attorney who specialized in labor & employment law, unsuccessfully appealed a finding that he had retaliated against a former university laboratory animal veterinarian for whistle blowing activities.  For me, the most notable part is that the veterinarian’s name is — get this — “Daniel Schwartz”.  (To be perfectly clear, that is an entirely different Dan Schwartz and has no relation to me.) But of course, there’s more to the case than the name.

It’s an unusual decision.  At the CHRO, a Human Rights Referee awarded Schwartz $5000 in emotional distress damages for the attorney’s actions in failing to return all of Schwartz’ personal belongings following termination.   The court said that failure to return the belongings could be seen as being an “personnel action”, which the court interpreted as the same as an “employment action”.

For employers, this case has some significant implications if the logic is upheld. Typically, the employee’s employment termination will “end” the type of actions that can be viewed by an employer as retaliatory.  But here, the Court suggested that the failure to return personnel belongings could be viewed as retaliation for the actions of the employee and that it may have a chilling effect on other whistle-blowers.

Look to the “Adverse Employment Action” Date to Determine if Employee is “Qualified Individual”

Lastly, but perhaps just as significantly, the Court decided Tomick v. UPS upholding most of a $500K+ verdict against the employer but also sending part of the case back for further consideration.   The case has a long and tortured history and also a complicated background.  Frankly, it’s a mess try to briefly recap in a blog post.

Among the issues the court decided was whether an employer’s request of an employee to take a drug test without reasonable suspicion violates Connecticut’s drug testing statute, regardless of whether the employee actually takes the test.  The Court concluded that the mere fact that the request was made was sufficient to give rise to a claim, at least given the circumstances of the case.

The court also answered a question that has been out there on disability discrimination cases. Someone has to be a “qualified individual” in order to fall within the the state’s disability anti-discrimination laws.  But what is the proper  date for making that determination.  The employer argued that the relevant date is the date of the adverse employment action, not the date when the termination process occurred or began.  The court agreed.  Notably and by contrast, when evaluating a claim of negligent infliction of emotional distress, the relevant inquiry is whether the employer’s conduct was unreasonable during the “termination process.”  On this issue, the Court remanded the case back to the Superior Court for further findings.

The court also examined attorneys’ fees and emotional distress damages and upheld them as well.

For employers, the case emphasizes the need of employers to seek legal counsel the instant an employment situation seems complicated.  The facts of this case show things moving at a rapid pace.  In addition, it’s important for employers to consider the termination process as well; be fair and respectful to avoid possible “emotional distress” claims later on.

We had another great turnout last week  for my firm’s seminar on labor & employment law.  Many of the topics would be familiar to avid blog readers, but there were three interesting points that I haven’t talked much about that I thought were also notable.

1.  In September, the IRS announced a Voluntary Classification Settlement Program which allows employers who have misclassified employees as “independent contractors” to escape some tax consequences for re-classifying them as employees.  There are downsides to this program (including opening yourself up to a wage & hour lawsuit by the employee) but it might work for some employers in some circumstances.

Interestingly, Deputy Labor Commission Dennis Murphy indicated at the seminar that Connecticut is exploring a similar program which may (or may not) get announced in early 2012.

2.  The DOL has an active Rapid Reemployment Initiative that connects employers with unemployed workers.  In doing so, the state also is providing financial incentives to employers who hire unemployed workers.  Details can be found on the DOL’s website.

3. There are also changes to the NLRB’s election rules that got passed last week.  Labor Relations Today has all the details. Among the approved changes

  • giving hearing officers the discretion to deny requests by parties to submit post-hearing briefs
  • eliminating the 25 day period between the issuance of a decision and direction of election by a regional director and the holding of an election
  • giving the Board the discretion to refuse to review a regional director’s resolution of post-election disputes

If you signed up for the seminar and were unable to attend (or attended) and would like a copy of the materials, please send me a note at dschwartz@pullcom.com.

My thanks to all who attended and made the program a big success.  Stay tuned for details on our next program in Spring 2012.

With all the publicity about paid sick leave (effective January 1, 2012 — you’re ready, right?), it’s important not to forget that there are plenty of other employment laws that employers have to consider.

Photo Courtesy Library of Congress

Over the last few years, there’s been more agency enforcement centered around employee misclassification — that is treating “real” employees as independent contractors.  Why is this important to state and federal governments? In part, because governments lose out on tax revenue, when wages are properly reported.

Last month, the IRS and the U.S. Department of Labor signed a Memorandum of Understanding that will improve the DOL’s “efforts to end the business practice of misclassifying employees in order to avoid providing employment protections.”  You can read the memo here.  There are plenty of summaries of this memo already out there.

Of importance to employers in Connecticut though is a lesser-known announcement that Connecticut was one of seven states to have signed memorandums of understanding with the department’s Wage and Hour Division and, in some cases, its Employee Benefits Security Administration, Occupational Safety and Health Administration, Office of Federal Contract Compliance Programs and Office of the Solicitor.

According to a press release posted on the Connecticut Department of Labor’s website, “The memorandums of understanding will enable the U.S. Department of Labor to share information and coordinate law enforcement with the IRS and participating states in order to level the playing field for law-abiding employers and ensure that employees receive the protections to which they are entitled under federal and state law.”

What Are The Implications for Employers?

Well, outside of the obvious one — namely, that employers should continue to evaluate their usage of independent contractors — the other big implication of this announcement is that employers should now assume that any Labor Department audits could be referred to the tax authorities for further investigation and followup. 

Combined with Connecticut’s new Joint Enforcement Commission on Worker Misclassification, these types of arrangements should make it clear that misclassification issues are at the top of agency enforcement agendas. 

 

The Connecticut Law Tribune this morning has word of a lawsuit by a group of individuals who say that as vacuum sellers, they were “hosed” by a company that, they claim, was actually their employer.  Because the case has just been filed, the employer has not yet filed a response.

Don't Get Swept Up

You can download a copy of the lawsuit here.

The case is likely to turn on misclassification issues – issues that I’ve talked about time and again here.  Indeed, this case only emphasizes the need for companies to review their practices when it comes to using independent contractors.

As one of my partners, Joshua A. Hawks-Ladds, commented in the article, “whether or not the workers are considered independent contractors or employees of Kirby may ultimately determine the outcome.”

“We’re seeing more and more class actions and more allegations of workers who are treated as individual contractors [instead of employees],” said Hawks-Ladds. “Or the Department of Labor brings a claim on their behalf, alleging they are not truly individual contractors.”

These “misclassification lawsuits” have become more prevalent since the federal government announced a crackdown on employers who hire people as employees but call them independent contractors. The government, he said, misses out on tax payments and other revenues when workers aren’t deemed to be employees.

Hawks-Ladds said one deciding factor is that independent contractors set their own work schedules and make other judgment calls, while a true employee’s work schedule and responsibilities are controlled by the employer.

He also said there is also a chance the defendants will cite an exemption to the wage and hour laws for outside salesmen, who typically go door-to-door.

It is easy, in day-to-day affairs, to ignore this issue. Time will tell whether another misclassification lawsuit will send the message to employers that this is one area of the law that shouldn’t be ignored.