Archives: Independent Contractor

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Schrödinger’s Cat? Ninth Circuit Disrupts Trucking Industry with Contractor Misclassification Ruling

Photo of Todd LebowitzBy Todd Lebowitz on Posted in Independent Contractor
Have you heard of Schrödinger’s cat? It’s not a real cat, like Felix or Brian Setzer. It’s a hypothetical, seemingly impossible cat that exists only in the world of quantum physics. Schrödinger’s cat refers to a thought experiment in which a cat in a box is simultaneously alive and dead, until you open the box … Continue Reading

California Supreme Court Applies Dynamex Independent Contractor Test Retroactively

Photo of Joseph S. PersoffBy Joseph S. Persoff on Posted in California, Independent Contractor
The California Supreme Court has concluded that the ABC Test it developed for determining whether a worker is an independent contractor or employee applies retroactively.  Therefore, the ABC Test, first developed in the Court’s Dynamex decision, applies to California wage and hour claims implicating a time period prior to issuance of the Dynamex decision on … Continue Reading

Snapshot or Long Exposure? Dep’t Of Labor Approves New IC Test … For Now

Photo of Todd LebowitzBy Todd Lebowitz on Posted in Department of Labor, Independent Contractor, Wage and Hour
This octopus in New Zealand has been trained to take photos of visitors to the Sea Life Aquarium. That’s a pretty neat trick. I’m sure the visitors love it and will pay whatever exorbitant fee the aquarium charges to profit on the back of its cephalopod slave labor, but will the photos last? Do the … Continue Reading

Bring Forth the Tiger-Dogs! Here’s a Quick Status Check on the Challenges to California’s New Independent Contractor Law

Photo of Todd LebowitzBy Todd Lebowitz on Posted in Independent Contractor
When outside forces pose a threat to people’s livelihood, people will go to great lengths to fight back. For example, when monkeys began ravaging the crops of a farmer in Karnataka, India, the imaginative farmer painted his dog to look like a tiger, to scare away the pesky invaders. [Photo here.] Business owners in California … Continue Reading

Not Dead Yet: The States’ New Strategy for Attacking Independent Contractor Misclassification Can Be Relentless — and Costly.

Photo of Todd LebowitzBy Todd Lebowitz on Posted in Independent Contractor
For years, state governments have claimed they were losing hundreds of millions of dollars in unpaid withholdings as a result of independent contractor misclassification. Now, one state is making a grab for a massive piece of that pie — all at once. On November 12, the state of New Jersey sent a bill to Uber … Continue Reading

New York City Extends NYCHRL Employment Protections to Freelancers and Independent Contractors

Photo of Amy J. TraubPhoto of Marc-Joseph GansahBy Amy J. Traub and Marc-Joseph Gansah on Posted in Independent Contractor, New York
On Oct. 13, 2019, New York City enacted Int. 136-A (the Law), expanding the employment protections of the New York City Human Rights Law (NYCHRL) to freelancers and independent contractors. The Law will take effect on Jan. 11, 2020. The NYCHRL applies to employers with four or more employees. The Law changes the counting rule … Continue Reading

Labor Department Withdraws 2015-16 Joint Employment, Independent Contractor Guidance

Photo of Todd LebowitzBy Todd Lebowitz on Posted in Independent Contractor
Did the new Labor Secretary finally throw employers a bone? We think so, but it’s too early to tell whether it’s delicious bacon-flavored or some generic processed meat flavor. On June 7, 2017, the Department of Labor (DOL) announced it was withdrawing the 2015 and 2016 informal guidance on joint employment and independent contractor misclassification.  The … Continue Reading

New NYC Law Requires Written Agreements for Solo Contractors, Even Nannies and Babysitters!

Photo of Todd LebowitzBy Todd Lebowitz on Posted in Independent Contractor
Do you have a nanny or a housekeeper? A regular babysitter? If so, pay attention. Anyone hiring a solo independent contractor in New York City will need to comply with the Freelance Isn’t Free Act, which takes effect May 15, 2017. Anyone. Individuals included. The Act requires a written agreement for all contracts where the value … Continue Reading

FedEx to Pay $228 Million in Independent Contractor Misclassification Settlement

Photo of Todd LebowitzBy Todd Lebowitz on Posted in Independent Contractor
Things that $228 Million will buy: – LeBron James’s waterfront mansion in Miami, listed for $15 million – A 710-year old copy of the Magna Carta, sold in 2007 for $21.3 million – The Oakland A’s, sold in 2005 for $180 million – Three personal submarines, at $2 million each; and – Tivi Island in Fiji (yes, the whole island), available … Continue Reading

Latest Scoop From New Jersey on Independent Contractor Misclassification May Cause Employers Brain Freeze

Photo of Todd LebowitzBy Todd Lebowitz on Posted in Independent Contractor, Retail, Wage and Hour
An ice cream parlor in Dania Beach, Florida, features The Original Kitchen Sink Sundae, which contains up to 30 scoops, plus chocolate syrup, marshmallows, nuts, whipped cream, and a variety of berries.  Customers can choose from any of the 38 flavors offered, and this menu item has earned Jaxson’s Ice Cream Parlor plenty of positive … Continue Reading

Volunteers Alleging Employment Status Lose Title VII Case, but Court Applies Vigorous Analysis First

Photo of Todd LebowitzBy Todd Lebowitz on Posted in Independent Contractor
Everyone’s looking for volunteers. The Salvation Army recruits helpers with the promise of “Doing the most good.” Volunteers of America invites participation by reminding the public “There are no limits to caring.” Even Disney’s Haunted Mansion seeks new recruits, reminding guests at the end of the doom buggy tour, “We have 999 happy haunts here, … Continue Reading

DOL Refills States’ War Chests for Independent Contractor Misclassification Crackdown

Photo of Todd LebowitzBy Todd Lebowitz on Posted in DOL, Independent Contractor
The U.S. Department of Labor has awarded $10.2 million in grants to 19 states for continued independent contractor misclassification detection and enforcement. The grants are focused on unemployment insurance programs and, more specifically, companies’ failure to pay unemployment insurance premiums for workers treated as independent contractors but whom the states deem to be employees. This … Continue Reading

New California Law Imposes Joint Liability on Businesses and Contract Vendors for Wage Violations and Workers’ Compensation Coverage

Photo of Todd LebowitzBy Todd Lebowitz on Posted in California, Independent Contractor, Workers' Compensation
For companies using independent contractors in California, 2014 has been a difficult year, with several significant court decisions threatening the contractor model. In June, the Ninth Circuit rejected the parties’ choice of Georgia law in an independent contractor agreement and found that the contractor was an employee under California law. Later that month, the California … Continue Reading

Conservative Kansas Joins the Liberal Ninth Circuit in Rejecting the Independent Contractor Classification of Delivery Drivers

Photo of Todd LebowitzBy Todd Lebowitz on Posted in Independent Contractor
Editor’s Note: This blog post is a joint submission with BakerHostetler’s Employment Class Action Blog. Last month we blogged about two Ninth Circuit opinions that deemed FedEx Ground drivers to be employees rather than independent contractors under California and Oregon law.  Last week the Kansas Supreme Court joined them, applying Kansas law to reach the … Continue Reading

NLRB Adopts New Test for Independent Contractor Misclassification, Applies it to Find FedEx Drivers are Employees Who Can Unionize

Photo of Todd LebowitzBy Todd Lebowitz on Posted in Independent Contractor, NLRB
The NLRB has tossed a new vegetable into the enormous salad of independent contractor misclassification tests. As companies might expect, the new vegetable smells rotten. Companies who wish to analyze whether their non-employee workers are properly classified as independent contractors must now contend with a new NLRB test, in addition to the IRS Right to … Continue Reading

Joint Employment Finding Leads to Unexpected $3 Million Liability in Hospital Malpractice Case

Photo of Todd LebowitzBy Todd Lebowitz on Posted in Healthcare, Independent Contractor, Staffing Agency
When Washington Hospital obtained an insurance policy in 2003 to cover medical claims arising from acts by its employees, its insurer probably did not consider whether hospital employees included workers supplied by a staffing agency. It should have. The issue of whether a staffing agency nurse was a joint employee of the hospital turned into … Continue Reading

Ninth Circuit Shows No Affinity for Independent Contractor Status in Delivery Drivers

Photo of Todd LebowitzBy Todd Lebowitz on Posted in Independent Contractor
Delivering another blow to the independent contractor model, the Ninth Circuit Court of Appeals held this week that furniture delivery drivers for Affinity Logistics were employees under California law, not independent contractors. In Ruiz v. Affinity Logistics Corporation, the Court of Appeals rejected the district court’s conclusion that Affinity’s drivers were independent contractors, a decision … Continue Reading

Illinois Supreme Court Upholds One of the Nation’s Strictest Worker Misclassification Laws; Employers May Face Millions of Dollars in Penalties

Photo of Todd LebowitzBy Todd Lebowitz on Posted in Independent Contractor, Wage and Hour
Worker misclassification is now a bet-the-company issue. On February 21, 2004, the Illinois Supreme Court rejected a constitutional challenge to Illinois’s Employee Classification Act (the “ECA”), a law that defines most individuals who perform construction-related services as employees of the company who retains them, even if the relationship is set up as an independent contractor … Continue Reading

Employers Under Continued Fire from Government Agencies and Legislature for Workplace Misclassification

Photo of Amy J. TraubBy Jeanine Conley and Amy J. Traub on Posted in Department of Labor, DOL, FLSA, Independent Contractor, New York, Wage and Hour
New York has just become the 15th state to formally align its efforts with those of the United States Department of Labor (“DOL”) to crack down on the misclassification of employees as “independent contractors.”  New York joins 14 other states (including California, Connecticut, Massachusetts, and Washington) that have partnered with the DOL to “root out bad … Continue Reading
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