Employee/Independent Contractor Status

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On July 15, 2015, the Department of Labor (“DOL”) issued guidance which it claims is designed to reduce the misclassification of employees as independent contractors under the Fair Labor Standards Act (“FLSA”). …
Continue Reading DOL Issues Guidance Claiming Most Workers Are Employees – Not Independent Contractors – Under the FLSA

A recent decision from the California Labor Commissioner’s Office found that a former Uber driver was an employee of the company, not an independent contractor as the firm has labeled its motorists.
Continue Reading California Finds Uber Drivers are Employees, Not Independent Contractors – Ruling Could Shake Up Mobile App-Based Business Model

In Euchner-USA, Inc. v. Hartford Cas. Ins. Co., No. 13-2021-cv, 2014 U.S. App. LEXIS 10797 (2d Cir. June 10, 2014), the United States Court of Appeals for the Second Circuit found that an insurer must defend its insured in a case alleging ERISA violations because the facts alleged (as opposed to the embedded legal…

On December 6, 2012, New Jersey Assembly Bill 3581 was introduced and referred to the Assembly Budget Committee.  The Bill would amend New Jersey’s current statute concerning enforcement, penalties and procedures for law regarding failure to pay wages and provide for enhanced penalties, among other things.  The Bill is part of the Assembly’s recent push to promote job creation and economic development through a series of legislative initiatives.…

Continue Reading New Jersey Introduces Bill Enhancing Penalties For Failure To Pay Wages

In an update to a recent article posted in July, the California Supreme Court agreed on October 10 to hear Patterson v. Domino’s Pizza, LLC, a sexual harassment case in which the court will decide whether a franchisor can be held liable for the acts of an employee of one of its franchisees.  The…

In Patterson v. Domino’s Pizza, LLC, the California Court of Appeals overturned the lower court’s order granting summary judgment to a franchisor and held that the terms of the franchise agreement did not necessarily govern whether the franchisor could be held strictly liable for the actions of an employee of the franchisee. …

Continue Reading California Appeals Court Holds That Franchisor May Be Liable For Harassment By Employee Of Franchisee

On October 9, 2011, California Governor Jerry Brown signed SB 459, legislation that creates new and significant civil penalties for employers that misclassify employees as independent contractors. The newly enacted Section 226.8 of the California Labor Code authorizes civil penalties under two circumstances: (1) “Willful misclassification of an individual as an independent contractor;” and (2) “Charging an individual who has been willfully misclassified as an independent contractor a fee, or making any deductions from compensation, for any purpose . . . .” In either case, the “person or employer” responsible for the violation “shall be subject to a civil penalty of not less than five thousand dollars ($5,000) and not more than fifteen thousand dollars ($15,000) for each violation, in addition to any other penalties or fines permitted by law.” Moreover, if there is a determination that a person or employer has engaged in “a pattern or practice” of violations, “the person or employer shall be subject to a civil penalty of not less than ten thousand dollars ($10,000) and not more than twenty-five thousand dollars ($25,000) for each violation.”…

Continue Reading New Legislation Magnifies The Consequences Of Misclassification Of Independent Contractors In California

On October 13, Pennsylvania Governor Edward G. Rendell (R) signed the Construction Workplace Misclassification Act (H.B. 400), which sets forth a number of prerequisites for classifying construction industry workers as independent contractors as opposed to employees.  Under the Act, the consequences for misclassifying a worker as an independent contractor are severe.  The Act is part of a large trend, as similar legislation has been enacted or is being considered in a number of other states.…

Continue Reading Pennsylvania Enacts Bill Targeting The Misclassification Of Construction Workers

In yet another employee misclassification case, Kentucky Attorney General, Jack Conway, brought suit against FedEx Corp. alleging that FedEx violates Kentucky state law by misclassifying its drivers as independent contractors.  The Complaint contends that FedEx violated state law in regards to unemployment insurance, workers compensation, payroll taxes, and the Kentucky Consumer Protection Act.  The lawsuit asks the Court to order FedEx to classify its drivers as employees and to pay the contributions and penalties required by state law, which includes back pay dating to 2000 and totaling at least $10 million.…

Continue Reading Kentucky Attorney General Sues Fedex For Employee Misclassification

Our prior posts have chronicled recent attempts by Congress and state legislatures to crack down on employers who misclassify employees as independent contractors, the most notable of which was the Employee Misclassification Prevention Act that, among other things, seeks to create a cause of action under the FLSA for misclassification and to require employers to keep records of hours worked by independent contractors.  On September 15, Congress took yet another step in the enforcement direction when Senator John Kerry (D-Mass.) and Representative Jim McDermott (D-Wash.) introduced The Fair Playing Field Act of 2010 (S. 3786, H. 6128), which seeks to close a so-called “loophole” under the current tax regime.
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Continue Reading Congress Proposes Additional Independent Contractor Legislation; “The Fair Playing Field Act” Receives Strong Support From White House