From JDSupra, Hopkins & Carley offers their review of 2015 and recommendations for 2016. They review a number of employment law developments including the Department of Labor Administrator’s Interpretation and offers their advice for employers:
What Should Employers Do Now?
•Resist the temptation to base contractor classifications on criteria other than those recognized by law – Businesses often classify workers as independent contractors because they perceive a financial advantage in doing so. 13 After all, they are not required to pay payroll taxes for contractors, and contractors are not eligible for overtime. Prudent businesses base classification decisions upon the applicable legal criteria, however, and recognize that the long-term risks of misclassification outweigh the potential short-term savings. The recent DOL guidance reveals that the extent to which the company retains control over the “manner and means” by which the worker performs services may be the most significant factor in its analysis.
• When reviewing the validity of contractor classifications, confer with counsel to obtain the protection of the attorney-client privilege – When employers analyze the proper classification of their workers, the information that they gather, and the conclusions that they reach, can be used against them in claims asserted by workers or governmental agencies unless the analysis is conducted with the guidance of an attorney under the attorney-client privilege. Employers that review classifications and conclude that they are incorrect can essentially admit liability if they cannot use the attorney-client privilege to preserve the confidentiality of their conclusions.
Read the full story at 2016 Employment Law Update: A Review Of Recent Developments