Providing Developments & Insight on Trending Topics in Employment Law

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When playing professional sports in Australia, you’d better watch out for snakes.

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A venomous red-bellied black snake was spotted on the field at an Australian Football League Women’s match <a href="https://www.reuters.com/sports/australian-rules-snake-halts-giants-tigers-till-handler-clears-field-2023-09-16/">earlier</a> this year, causing an understandable delay. And just last month, a professional tennis match was <a href="https://www.cnn.com/2023/12/30/sport/dominic-thiem-snake-brisbane-international-spt-intl/index.html">halted</a> when a poisonous eastern brown snake slithered onto the court near the ballkids.

This happens periodically in the U.S. too. A minor league baseball park in Texas saw play <a href="https://www.milb.com/news/snake-interrupts-texas-league-game-in-san-antonio-276374066">interrupted</a> by a snake in center field, just one night after play was delayed to remove a cat from the outfield warning track.

Whether playing outside or managing your business, you need to know what to watch for. Cats may be relatively harmless, but snakes can bite you in the behind.

Here are several other things that could bite you in the behind in 2024 if you’re not paying attention:

1. The Department of Labor (DOL) is about to release a new test for independent contractor misclassification.&nbsp;

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In October 2022, the DOL proposed a new rule, which led to tens of thousands of public comments in response. Recent filings suggest that the new final rule will be released any day now. The <a href="https://www.bakerlaw.com/insights/todd-lebowitz-authors-article-on-the-dols-contractor-rule-change-partner/" target="_blank" rel="noreferrer noopener">proposed rule</a> identified seven factors to consider when evaluating whether someone is an employee under the Fair Labor Standards Act (FLSA). The final rule will likely be very similar, and it will be released soon.

2. The new National Labor Relations Board (NLRB) test&nbsp;for joint employment takes effect Feb. 26, 2024.&nbsp;

Unless it doesn’t. The NLRB’s new rule is being challenged in a federal district court in Texas and in the U.S. Court of Appeals in D.C. Either court could quash the rule. The new rule will substantially expand the definition of &nbsp;“joint employer” under the National Labor Relations Act (NLRA),&nbsp;even for&nbsp;work sites without unions.

3. State and local governments are ramping up enforcement activity.&nbsp;

Class-action lawsuits are not the only way misclassification claims are brought. We are seeing increased activity in lawsuits brought by state and local attorneys general. The New Jersey attorney general recently&nbsp;<a href="https://www.nj.gov/labor/lwdhome/press/2023/20231211_missclasscomplaint.shtml" target="_blank" rel="noreferrer noopener">filed</a>&nbsp;a major misclassification lawsuit. The California attorney general and California&nbsp;localities&nbsp;have been pursuing misclassification lawsuits too. While there are tools that businesses can use to reduce the risks of misclassification class actions – mainly, individual arbitration agreements with class-action waivers – these tools have no effect on claims brought by state and local governments. The lawsuits can sting even if you eventually win. Governments love to issue one-sided accusatory press releases when they file the lawsuits. They generally publicize settlements too, making it very difficult to maintain confidentiality.

4. The DOL and NLRB are ramping up enforcement efforts too.&nbsp;

Federal agencies also are getting more aggressive in their enforcement efforts. Like state and local governments, the federal agencies will issue press releases when they file suits and when they settle them. They like public shaming.

5. State and local governments are passing new laws that affect independent contractor classification and joint employment.

We’re seeing legislative activity in three main areas:

(1 laws to change the tests for joint employment and independent contractor misclassification.,&nbsp; (2) laws that provide a safe harbor for independent contractor classification if certain protections are provided to the workers (California Prop 22; a proposed&nbsp;Massachusetts state law). (3) freelancer laws that impose various requirements when retaining a solo independent contractor (currently New York State, Illinois, Los Angeles, Minneapolis, Seattle, New York City, Columbus).

6. New state laws are criminalizing worker misclassification.&nbsp;

Recent legislation passed in&nbsp;New York State&nbsp;and&nbsp;Rhode Island creates criminal risks for businesses and individuals involved in worker misclassification.

7. New state laws require disclosures when using temporary labor&nbsp;

In 2023, new laws in Illinois and New Jersey imposed a set of requirements for using temporary workers from staffing agencies. Under these laws, the companies using the temporary workers must make disclosures about the wages they pay to their regular workers performing similar jobs. Expect more states to consider similar legislation in 2024.

8. California’s AB 5 is still being challenged.&nbsp;

This is the law that codified the ABC test for most independent contractor relationships. But it also included a grab bag of miscellaneous and arbitrary exceptions. A full&nbsp;en banc&nbsp;Ninth Circuit has agreed to rehear&nbsp;Olson&nbsp;v. State of California, which challenges the constitutionality of AB 5.&nbsp;We can expect a ruling in late 2024.

Our <a href="https://www.bakerlaw.com/services/labor-and-employment/contingent-workforce/">Contingent Workforce Practice Team</a> is prepared and equipped to help you navigate all this. Wishing you a happy, healthy and litigation-free 2024.

Snakes! And Other Things to Watch for in 2024, Contingent Workforce Edition