Over at our sister blog, Employment Law Letter, my colleague Sarah Niemiroski and I have a recap of the important new Supreme Court case. No, not the affirmative action one (we’ll get to that in another post) but the one on religious accommodation, Groff v. DeJoy.
The gist of the decision is that employers
There are certain expressions in the employment law world that don’t make much sense. Call them: Employment Law Oxymorons.
At least for me, hearing an employer ask what they should do about their “1099 Employees” is one of them.
Let’s back up one step:
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
Can an employee work for more than one employer at the same time? Under a theory of law called “joint employment”, the answer is yes.
But how do you make that determination?
Suppose a private bus company provides services all over Connecticut. It’s largest customer happens to be a very large private university in the
Suppose your company just purchased another small company. As is typical in such deals, you have hired the owners under a three year employment contract because the professional services and expertise of the owners is important to the deal’s success. In that arrangement, you have a restrictive covenant that says that if and when the
Today, the EEOC has published its final rule clarifying a portion of the Age Discrimination in Employment Act (ADEA). You can download the rule here and a FAQ from the EEOC here. The rule comes as a partial response to a 2008 U.S. Supreme Court decision that analyzed the issue.
The rule has some significance for employers who have policies or take action that may have a disparate impact on older workers. In plain english, disparate impact essentially means an age-neutral rule that affects older workers more than younger workers; disparate treatment means a rule or action that treats older workers differently.
The easiest example to think of is suppose a police department has a physical fitness test so that officers can pursue and apprehend suspects; that practice may have a disparate impact on older workers .
So what did the final rule clarify? According to the EEOC:
Continue Reading EEOC Publishes Final Rule on Reasonable Factors Other Than Age (RFOA)
The word “Interns” has turned into a dirty word for employment lawyers lately. But before you panic, it’s time to separate fact from fiction.
Now, it IS true that a few years back, the United States Department of Labor signaled employers that it would start cutting down on the practice that some
Earlier this month, I talked about how a new case from the Connecticut Supreme Court could have an impact on bonus plans for employers. The Connecticut Law Tribune this week (subscription required) echoes many of my sentiments.
The Tribune states that some employment lawyers believe it is going to have a "wider impact", while others