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

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

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

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

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

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.

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A few weeks ago, I indicated (in posts here and here) that the AT&T Mobility v. Concepcion case would have a huge impact on forcing arbitrations of employment matters and limiting class actions.

An important new federal District Court case in Connecticut decided yesterday, D’Antuono v. Service Road Corp., (download here) has shown that to be the case exactly.

But, coming from the school of “you can’t make this stuff up”, it is remarkable that the case that is deciding this issue is one grounded in the claims of “exotic dancers” who allege that they were misclassified as independent contractors instead of employees.

(How can the strip club claim that the individuals were independent contractors? While it is not relevant to the court’s decision here, the dancers signed “leases” to the “performance space”.  Within those leases were arbitration provisions.  The Court did not decide that issue, though if you’re interested, I discussed a similar case back in January here. )

What is important for all employers to know is that here, the central issue in this case was whether the agreement to arbitrate (found in a lease agreement between the exotic dancer (as “tenant”) and the strip club (as “landlord”) was enforceable. The Court said that it was. In doing so, the Court forced the plaintiffs to arbitrate their FLSA claims and remove the specter of a collection action, finding that the plaintiffs gave up that right in their case.Continue Reading In Titillating Case, Court Compels Strip Club Dancers to Engage Individually …in Arbitration