Earlier today, U.S. Secretary of Labor Alexander Acosta announced the withdrawal of the U.S. Department of Labor’s informal guidance on joint employment and independent contractors issued during the Obama administration. The announcement states that the withdrawal does not “change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act” and that the DOL “will continue to fully and fairly enforce all laws within its jurisdiction.” We will keep you updated on any additional word from the DOL on these issues, but it appears that by withdrawing these guidelines, the new administration is taking a first step away from attempts of the Obama administration and the NLRB to expand concepts of joint employment.
Independent Contractor
Webinar – Back to School: Employment Law Update
As fall approaches and students head back to school, The Employment Lawyers are taking a look back and a look ahead at issues in labor and employment law. Join us for an informational webinar to review developments over the past year and discuss tips to keep your workplace practices current in the coming year.
Thursday, September 17, 2015
12:00 pm – 1:30 pm (CDT)
CLICK HERE TO REGISTER
TOPICS
- Proposed changes to overtime regulations that will make more employees overtime-eligible
- New standards in accommodating religious practices and pregnancy
- The NLRB’s “quickie” election rules and what they mean for union organizing efforts
- Raising the standard to establish that a worker is properly classified as an independent contractor
- The EEOC’s new position on wellness programs and disability discrimination
- Expanding employee retaliation and whistleblower claims
- New state and local laws that impact minimum wage, paid sick leave and accommodation requirements
And more…
CLE Credit Available | This program has been submitted to the HR Certification Institute for review.
QUESTIONS
Contact Annie Darmofal at 312.476.7626 or adarmofal@lplegal.com
The Steep Consequences of Misclassification
Two recent developments are a good reminder that companies who have independent contractors are under increased scrutiny and face a high bar in establishing that independent contractors are properly 
classified as such — and not employees.
On July 15th, the Department of Labor issued a guidance saying that most workers qualify as employees under the Fair Labor Standards Act (FLSA) regardless of what the worker and the company may have agreed to. The guidance doesn’t announce a new test for independent contractor status. Instead, it starts with the “economic realities” test for independent contrator status that courts regularly use and a reads it together with a broad view of the FLSA’s definition of employ to reach a conclusion that most independent contractors are misclassified and should, instead, be treated as employees.
The DOL’s guidance was close on the heels of a decision by the Seventh Circuit Court of Appeals, which reversed the lower court and ruled that FedEx delivery drivers are employees under Kansas state law, not independent contractors. In making its decision, the 7th Circuit certified the question of whether the drivers were employees under the Kansas Wage Payment Act to the Kansas Supreme Court. The Kansas Supreme Court, applying a 20-factor test, found that the drivers were employees because FedEx, among other things, assigns drivers their routes; requires them to check in with FedEx managers at the start of their day; regulates their appearance; and decides whether to hire a driver after the driver submits resumes and references like any other employee.
So what are the consequences of misclassification? Companies that misclassify employees as independent contractors face penalties for failing to pay employment taxes, for failing to withhold taxes from pay, for failing to comply with wage and hour requirements (such as overtime), for failing to contribute to unemployment compensation, and for failing to comply with other employment-related laws. In addition, the Affordable Care Act opens companies that misclassify workers to significant penalties — both based on failure to offer coverage to the required portion of the workforce and where a misclassified worker obtains coverage on an exchange.
In light of these developments, we strongly recommend that any company that has independent contractors work with counsel to determine if these workers are properly classified. A thorough review now could save you lots of money, time, and aggravation later.
When a Work Made for Hire Isn’t a Work Made for Hire
From time to time, other attorneys with our firm will contribute blog posts on items that may be of interest to members of the labor and employment law community. Today, we are fortunate to have a post contributed by Marc Fineman, a partner in Levenfeld Pearlstein’s Intellectual Property Group. Marc’s post discusses an issue that frequently comes up when companies retain independent contractors. As Marc explains, if you don’t document the relationship correctly you may not own what you think you own when the project is complete . . .
It is a widely held belief that if you retain an independent contractor to create something (a logo, software, a website, marketing collateral, etc.), and you pay the outside contractor, then you “own” what the independent contractor creates. However, this is a common misconception that can lead to disastrous results. For most works created by an independent contractor, the independent contractor owns the copyrights to the works, even if the independent contractor is paid, unless the independent contractor signs a written copyright assignment.
The phrase “work made for hire” is a term of art under the U.S. Copyright Act and refers to two categories of works. The first category is relatively straightforward—the copyright to any work prepared by an employee within the scope of his or her employment is owned by the employer. However, the second category of works made for hire, which covers works created by independent contractors, applies only to nine somewhat unusual types of works (and requires a signed agreement with the independent contractor in which the parties agree that the work is a “work for hire”). For works created by independent contractors that fall outside of those nine specific types of works (as many works commonly created for businesses do), the independent contractor owns the copyright to the work unless the independent contractor signs a written copyright assignment.
Think about the situations in which you have retained, or in the future may retain, an independent contractor to create something for you or your business. Then, think about what would happen if you found out that your independent contractor owns the copyright to what he or she created for you. Could you still stop somebody else from infringing the work? Could the independent contractor sue you for infringement? Would a potential buyer of your business be concerned?
The bottom line—if you use an independent contractor, be sure to obtain a written copyright assignment.
Illinois Supreme Court Upholds Constitutionality of the Employee Classification Act
On February 21, 2014, in Bartlow v. Costigan , the Illinois Supreme Court unanimously upheld the constitutionality of the Employee Classification Act (ECA).
The ECA is aimed at cracking down on misclassification of employees as independent contractors in the construction industry. The ECA deems an individual performing services for a “contractor” as an employee of the contractor unless the individual can meet certain specific tests (e.g., is the individual free from the direction and control of the contractor? Is the service performed by the individual outside the usual course of services performed by the contractor?). A “contractor” is any person or firm “who engages in construction.” One of the complaints from employers about the ECA is that “construction” is broadly defined to include everything from “maintenance” and “landscaping” to more traditional construction tasks such as “remodeling,” “wrecking,” and “refurbishing.”
The Bartlow case hinged on whether or not the ECA was impermissibly vague and violated procedural due process rights. After years of back and forth in lower courts, the Supreme Court rejected all of the plaintiff’s constitutional challenges. With regard to the plaintiff’s vagueness argument, the court held that “a person of ordinary intelligence could understand the conduct prohibited under the act” and that recent amendments to the law essentially rendered the plaintiff’s other concerns moot.
Employers who were hoping the law might be repealed or modified by the state legislature or overturned by the Illinois Supreme Court need to recognize that it is here to stay. If your business is connected in any way to the construction industry, as broadly defined under the statute, you need to scrutinize your use of independent contractors to ensure it is in compliance with the ECA.
Employment Law Update: A Look Back and a Look Ahead
This year, LP’s Labor & Employment attorneys tried something different with our annual “Employment Law Update” and hosted the program as a webinar. The new format allowed us to record this year’s program and make it available for all our blog friends, colleagues and clients who were unable to participate. LP labor and employment attorneys Peter Donati, Laura Friedel and Kenneth Kneubuhler highlighted recent updates in labor and employment law and tips to keep your workplace practices current.
You can find the recording here and the presentation materials here.
To give you an idea of what topics are covered in this year’s “Employment Law Update” here are the topics we discussed:
•The impact of recent Supreme Court decisions on supervisor liability and the burden of proof for retaliation claims
• Trends involving arbitration agreements: Will they prevent class claims? Should your business be using them?
• Same sex marriage: How it affects employee rights under the FMLA and benefit plans
• Recent Illinois cases involving non-compete agreements. Will your agreements be enforceable when you need them?
• New developments at the National Labor Relations Board that affect both union and non-union workplaces
• How to properly use background checks to avoid scrutiny by the EEOC and avoid violating state laws
• Current wage and hour issues, including developments involving interns and independent contractors
• Other important state law trends, including laws on concealed weapons, medical marijuana, and social media passwords
The Employment Lawyers 