Employee/Independent Contractor Status

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As anticipated and previously reported, the Republican-controlled Board is overturning Obama-era rulings. For example, in a recent decision, SuperShuttle Inc. DFW, Inc. (16-RC-010963), the National Labor Relations Board affirmed the Board’s adherence to the traditional common-law agency test.  This decision overrules the NLRB’s 2014 Decision, FedEx Home Delivery, 361 NLRB No. 65, which had modified the NLRB’s long-standing test for independent contractor status.
Continue Reading NLRB Returns To The Traditional Common-Law Agency Test for Independent Contractors

In a rare win for plaintiffs seeking to avoid arbitration, the U.S. Supreme Court rejected a trucking company’s attempt to compel arbitration in a driver’s proposed minimum wage class action.  The Court held that the Federal Arbitration Act’s exemption for interstate transportation workers applies not only to employees, but also to those classified as independent contractors. …
Continue Reading SCOTUS Rejects Employer’s Attempt to Compel Arbitration of Independent Contractor’s Class Claim

As we wrote about last month, on May 21, 2018, the Supreme Court rendered its decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1632 (2018), rejecting perhaps the largest remaining obstacles to the enforcement of class action waivers in arbitration agreements in the employment context.  The Court concluded that the class action waivers did not violate the National Labor Relations Act.  Although the Court’s opinion also seemed dispositive of whether such agreements could be avoided under the Fair Labor Standards Act, at least one claimant tried to continue to litigate the issue, which was disposed of last week in Gaffers v. Kelly Servs., Inc., No. 16-2210 (6th Cir. 2018).  And now the Sixth Circuit has addressed whether Epic Systems would apply to arbitration agreements with putative independent contractors who contended that they should have been treated as employees.
Continue Reading Supreme Court’s Decision Upholding Arbitration Agreements Applies to Independent Contractors Too

Andrea Mickles filed a complaint against her employer Country Club Inc., alleging it had violated the Fair Labor Standards Act (FLSA) by improperly classifying her and other employees as independent contractors and failing to pay them minimum wage and overtime.  She filed her case as a collective action, and others opted into the case before any ruling on conditional certification. …
Continue Reading Who’s Invited to the Party?: The Status of Collective Action Opt-Ins

The California Supreme Court has adopted a new three-part test to determine whether a worker is an independent contractor or an employee under California’s wage orders, which regulate wages, hours, and working conditions.  The highly anticipated ruling could have wide ranging effects for businesses operating in California and beyond, as companies try to navigate the new gig economy. …
Continue Reading California Supreme Court Adopts New Independent Contractor Test

Recently the National Labor Relations Board invited interested parties and amici to submit briefs in Velox Express, Inc. to address under what circumstances, if any, the Board should deem an employer’s misclassifying statutory employees as independent contractors constitutes a violation of Section 8(a)(1) of the National Labor Relations Act.  Briefs from parties and interested amici must be submitted on or before April 16, 2018.
Continue Reading NLRB Invites Briefs Regarding Whether Worker Misclassification Violates The NLRA

In a press release issued this morning, the Department of Labor has announced that it is withdrawing two administrative interpretations issued by the Department of Labor under the Obama administration in 2015 and 2016 relating to misclassification of independent contractors and joint employment.
Continue Reading Department of Labor Announces a Rollback of Obama Administration Policies on Joint Employment and Employee Classification

The issue of whether workers are properly classified as independent contractors rather than employees is a common dispute in the gig economy, particularly in newer, technology-based industries, such as ride-sharing. That issue just became a much simpler one in Florida.
Continue Reading Florida Legislation Establishes That Ride-Sharing Drivers Are Independent Contractors, Not Employees

Across the country, worker misclassification issues continue to be a significant risk for employers. One hot button issue is whether workers in newer, technology-based industries, such as ride-sharing, are properly classified as independent contractors rather than employees. Last week, an appellate court in Florida considered whether Uber drivers are properly classified as independent contractors or employees for purposes of benefits under Florida’s unemployment insurance statute.
Continue Reading Florida Court Finds Uber Drivers are Independent Contractors, Not Employees

On January 20, 2016, the administrator of the Department of Labor’s Wage and Hour Division (WHD), David Weil, issued an “Administrator’s Interpretation” (AI) regarding the agency’s interpretation of joint employment under the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). …
Continue Reading DOL Says Joint Employment Under FLSA and MSPA Should Be “As Broad As Possible”