California Court Rejects Challenge to New Independent Contractor Test

Vincent Jackson
Vincent Jackson
03/24/2020
In the midst of the ongoing debate over the appropriate employment classification of workers traditionally considered to be independent contractors, California has served as a laboratory of evolving law.  Its State Supreme Court (in Dynamex Operations W. V. Superior Court, 4 Cal. 5th 903, 232 Cal. Rptr. 3d 1, 416 P.3d 1 (2018)) and State Legislature (through Assembly Bill 5) both recently have adopted a new definition of “independent contractor”...
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Uber Hit With $650M in Employment Taxes in NJ

Frank Kollman
Frank Kollman
12/02/2019
Uber claims that its drivers are independent contractors.  New Jersey, on the other hand, says that they are employees.  What’s the difference?  At least $650 million in unpaid unemployment and state disability taxes, according to New Jersey. This tax bill should remind you that there are serious penalties for misclassifying employees as independent contractors.  In addition to NJ, the federal and most state governments are becoming more...
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Surgeon Is Not Hospital Employee For Title VII Purposes, Seventh Circuit Holds

Kollman & Saucier
Kollman & Saucier
05/10/2019
To build on my colleague Vince Jackson’s recent post about the Department of Labor’s distinction between independent contractors and employees, teasing out whether an individual is (or was) a company’s employee who is generally covered by equal employment opportunity laws, or an independent contractor who is not covered, is an often difficult but critically important issue in handling employment litigation. This week, a federal court of...
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Department of Labor Opines That Gig Workers are Independent Contractors

Vincent Jackson
Vincent Jackson
05/03/2019
On April 29, 2019, the Department of Labor’s (“DOL”) Wage and Hour Division issued an opinion letter (FLSA2019-6) stating that workers in the “gig” or “sharing” economy should be considered as independent contractors rather than employees.  This opinion letter, while limited to the specific facts of the anonymous company who requested it, has potentially wide-ranging consequences for the sharing economy as a whole. The DOL’s letter...
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NLRB Restores Independent Contractor Analysis

Garrett Wozniak
Garrett Wozniak
01/29/2019
This past Friday, the National Labor Relations Board, in 3-1 decision, revitalized the importance of “entrepreneurial opportunity” in the analysis of whether a worker is an employee or independent contractor for purposes of the National Labor Relations Act (NLRA).  SuperShuttle DFW, Inc., 367 NLRB No. 75 (Jan. 25, 2019).  The distinction between employee and independent contractor status is important, because the former is protected by the NLRA...
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Uber Gets Taken for a Ride

Randi Klein Hyatt
Randi Klein Hyatt
05/12/2016
Well, not really.  But I just couldn’t resist the title.  Uber did, however, suffer another blow against it in the intensifying efforts to classify its drivers as employees.  This time, the venue was a federal court in California and the plaintiffs were two women who allege they were sexually assaulted by two of Uber’s drivers. In Jane Doe, et al. v. Uber Technologies, Inc., No. 3:15-cv-04670 (N.D. Calif.; decided May 4, 2016), the plaintiffs...
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New DOL Guidance Makes The Independent Contractor A Rare Breed Indeed

Randi Klein Hyatt
Randi Klein Hyatt
07/16/2015
On July 15, 2015, the Department of Labor (DOL), through its Wage and Hour Division, issued its first Administrator’s Interpretation (AI) of the year, and in more than a year (2015-1).  AI 2015-1 focuses on the always complex issue of independent contractor versus employee classification under the Fair Labor Standards Act (FLSA).  The DOL has not held back, at all.  This AI makes clear the DOL has little tolerance for the concept of independent...
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Second Circuit Adopts New Intern Test

Randi Klein Hyatt
Randi Klein Hyatt
07/10/2015
The United States Court of Appeals for the Second Circuit recently established a new test to determine whether an individual should be classified as an intern, and thus not subject to the FLSA and local wage and hour law. Rejecting the test employed by the Department of Labor (which filed an amicus brief with the appellate court), the Second Circuit’s new test is less rigid and seems, at least at first blush, to give more weight to the educational...
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The Supreme Court Will Not Review "The Truck Drivers Are Employees" Decision

Randi Klein Hyatt
Randi Klein Hyatt
12/16/2014
Time and time again, employers get dinged for improperly classifying employees as independent contractors.  Whether it is unpaid taxes or employees seeking unpaid wages, these cases are increasing.  Ruiz v. Affinity Logistics Corp., 754 F.3d 1093 (9th Cir. 2014) is no different.  Here, the Supreme Court decided it would not reconsider the employer's argument that its furniture delivery drivers were independent contractors, and not employees, and...
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Bank is Not Joint Employer of Security Guards Under FLSA

Eric Paltell
Eric Paltell
05/16/2013
In today’s workplace, most employers rely upon outside vendors to supply security services. What employers may not know is that the fact that the security guards are not their own employees does not necessarily mean that the employer is not liable for violations of employment laws. The answer to the liability question turns in large part on how much control the employer has over the terms of employment for the guards. On May 14, 2013, a federal...
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