Worker Misclassification

Should Employers Keep Wage And Hour Records For Independent Contractors? 

Timesheet

  From JDSupra, Bill Wright recommends that companies keep appropirate records of who is doing the work and the hours that they keep. Bill writes: The Department of Labor successfully stated a claim for record-keeping violations against a franchisor, because the franchisor failed to keep records on the hours worked by the specific individuals actually performing work…

Are Independent Contractor Classifications Becoming “Safer”? In a Word – No.

classification text

  From The National Law Review, Christopher G. Ward warns that despite some indications that the risks of misclassification are diminishing, employers should still be careful to properly classify workers as employees or independent contractors. Christopher writes: One might be excused for thinking (from an employer-biased point of view) that the independent contractor minefield might be settling…

Notwithstanding Trump’s Efforts to Narrow Joint Employment Liability, Businesses Need to Remain Vigilant When Using “Independent Contractors”

Cable installer

    From The National Law Review, Leonard V. Feigel discusses a recent case which, despite the Trump’s administration’s efforts limit a company’s exposure as a joint employer, found that a company was a joint employer and liable for labor law violations. Leonard writes: as we previously wrote about, federal agencies under Trump’s administration have taken steps…

N.J. sick leave law alters criteria for contractor status

  From CCJDigital.com, Jill Dunn reports that the New Jersey Department of Labor and Workforce Development proposes making the ABC test the test for determining if a worker is eligible for paid sick leave. The Department will have a hearing on November 13. Jill writes: New Jersey wants to only use the so-called ABC test to determine employment…

New Type of Independent Contractor Misclassification Lawsuit: Business vs. Business

Unfair competition

  From JDSupra, Richard Reibstein discusses a new type of lawsuit in which a company sues another for unfair competition alleging that the misclassification of independent contractors is an unfair business practice. Richard writes: The newest type of legal challenge is by a business that doesn’t use independent contractors, accusing another business that does use them of…

Class Wide Arbitrations – Who Gets to Decide? 

arbitration agreement with gavel

  From Lexology, Tyler S. Laughinghouse and Ryan A. Glasgow discuss a decision in which the court said a court gets to decide class arbitrability unless the arbitration provision clearly says the arbitrator has the discretion. Tyler and Ryan write:  In Jpay, Inc. v. Kobel, the Eleventh Circuit ruled that questions of class arbitrability should be decided…

Misclassification of Employees May Lead to Fiduciary Breach Claims 

ERISA

    From Lawyer.com, Marc S. Schechter explains how the misclassification of workers as independent contractors may lead to claims under the Employee Retirement Income Security Act of 1974 (ERISA). Marc writes: The misclassification of an employee as an independent contractor, thereby excluding them from the benefits of participation in the qualified retirement benefit plan, could place…

Seventh Circuit Defines Appropriate Test for Joint Employer Liability Under Title VII 

waitress with white shirt and black tie

  From JDSupra, Orly Henry discusses a recent case in which the Seventh Circuit Court of Appeals said that the economic realities determined whether an entity was a joint employer. Orly writes: On appeal, the Seventh Circuit held that the lower court had erred in applying the “employee” test set forth in Smith v. Castaways Family Diner, 453…

Labor Board Proposes Complete Overhaul To Joint Employment Rule 

National Labor Relations Board logo

  From JDSupra, Steven Bernstein and John Polson discuss the new rule proposed by the National Labor Relations Board (NLRB). Steven and John write: If the proposed rule is adopted in its current form, an employer would only be considered a joint employer if it shared or codetermined the “essential terms and conditions” of employment over the workers of another…

NLRB Announces Proposed Rule Changing Joint-Employer Standard 

National Labor Relations Board logo

  From Lexology, Zach Fashman reports that the National Labor Relations Board is proposing a new standard for determining if an entity is a joint employer. The new standard raises the standard for who can be found to be a joint employer which is good news for entities engaging with independent contractors because it is…