Over the next few days, I hope to provide a few updates from attending last week’s ABA Labor & Employment Law Annual Conference in Philadelphia. There were many good, substantive programs there and lots to be gleaned for employers.
One of the sessions focused
Sharon Palmer, the Commissioner of the Connecticut Department of Labor, will retire at the end of this year, news that was first reported by the CT Mirror website.
According to CT Mirror:
In an interview, she described her decision to retire as driven by age and circumstance, not politics or a consequence of overseeing the
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
Did you enjoy the fireworks last week?
I’m not talking about the real Independence Day fireworks; rather, it’s a new Second Circuit decision that should have employment lawyers popping this morning.
For a while, we’ve been talking about interns. Indeed, back in 2013, I talked about how a wage/hour case involving interns on the movie “Black Swan” had the potential to change how employers use interns.
In that case, a federal district court judge essentially adopted a six-factor test used by the U.S. Department of Labor to determine if an intern was really an employee.
Flash forward to last Thursday. In somewhat of a surprise, the Second Circuit — which covers cases in Connecticut — reversed that federal district court court’s decision and rejected the DOL’s six-factor approach.
In its place, the court adopted what Jon Hyman properly termed, a “more flexible and nuanced primary-benefit test.”
[T]he proper question is whether the intern or the employer is the primary beneficiary of the relationship. The primary beneficiary test has two salient features. First, it focuses on what the intern receives in exchange for his work.… Second, it also accords courts the flexibility to examine the economic reality as it exists between the intern and the employer.…
In the context of unpaid internships we think a non‐exhaustive set of considerations should include:
1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands‐on training provided by educational institutions.
3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.…
On Monday night, details of the revised white-collar overtime regulations were released. But we’ll know more once the actual details get posted on the Department of Labor website on Tuesday. (Bloomberg was the first to report it Monday evening.)
(Update 6/30/15: The proposed regulations are now available online from the
The U.S. Department of Labor has released their annual statistics on labor union membership. Nationwide, union membership is down slightly by .2 percent. In total, about 11 percent of the workforce belongs to a union. Compared to 2008, when I reported on these statistics, the number is down by a full percentage point.
The
Yesterday on Twitter, a Connecticut legislator posted this:
“There oughta be a law…!” Hey Connecticut, legislators have 5 days to submit ideas for bills. What new laws should the #CTLeg consider?
— Matt Lesser (@MattLesser) January 12, 2015
State Representative Matt Lesser, be careful what you ask for. But since you asked, here’s a
In yesterday’s post, my colleague Chris Engler discussed the “wilful” misconduct standard and how it applies when your employee is otherwise eligible to receive unemployment compensation.
Today, Chris returns and has a quick quiz to review some recent cases of how this standard has been applied.
So, you think you know what the “wilful” misconduct
While the temperatures this morning didn’t feel much like summer, the season is upon us. And be honest — when you think of summer do you think a) hot dogs or b) wage & hour issues for interns? If you answered b), you probably need some help. Which is why my colleague Jarad Lucan has
Today is Veterans Day. First and foremost, I want to thank all of our veterans for their service to this country.
For employers, there are a whole host of laws that employers must be aware of when dealing with veterans and servicemembers.
First, I’ve often covered USERRA —
