Category Archives: Independent Contractors

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UPDATE: NYC Adopts New Rules Implementing Freelance Law

Earlier this year, we reported that New York City adopted The Establishing Protections for Freelance Workers Act, also known as the Freelance Isn’t Free Act, (the “Freelance Law”). As explained in our prior blog, under the Freelance Law, a company must: (1) provide a written contract when it contracts with a freelance worker for services … Continue Reading

The U.S. Department of Labor Rolls Back Obama-Era Guidance on Joint Employers and Independent Contractors

The U.S. Department of Labor (“DOL”) announced today that it was rolling back an Obama-era policy that attempted to increase regulatory oversight of joint employer and contractor businesses. Courts and agencies use the joint employer doctrine to determine whether a business effectively controls the workplace policies of another company, such as a subsidiary or sub-contractor. … Continue Reading

New Freelancer Law Imposes Additional Requirements For NYC Companies Contracting With Freelancers

The Establishing Protections for Freelance Workers Act, also known as the Freelance Isn’t Free Act, (the “Freelance Law”), which was touted by New York City Mayor Bill de Blasio as the first law in the nation aimed at protecting wage payment rights of freelance workers, became effective last Monday, May 15, 2017. The Freelance Law … Continue Reading

NLRB Releases Advice Memorandum Affirming Misclassification Constitutes Unfair Labor Practice

At the end August, the National Labor Relations Board released an advice memorandum, originally drafted in December 2015, concluding that a group of drivers who worked for a drayage company called Pacific 9 Transportation were misclassified as independent contractors and that this misclassification constituted a violation of the National Labor Relations Act. This advice memorandum … Continue Reading

New Year, New Rules For Employers Doing Business in California

This year the California Legislature added over a dozen new employment laws, many of which take effect on January 1, 2016.  Some of these laws impose new prohibitions on employers, while others provide positive benefits such as safe harbors, cure provisions, and employer incentives for reclassification of certain independent contractors.  This update highlights key provisions … Continue Reading

NLRB Broadens its Test for Determining Joint-Employer Status

On August 27, 2015, the National Labor Relations Board (“NLRB”) issued its highly anticipated decision in Browning-Ferris Indus. of California, et al. v. Sanitary Truck Drivers, 362 NLRB No. 186. In deciding to “revisit and revise” its joint-employer standard, the NLRB held in a 3-2 decision that Browning Ferris (BFI) was a joint employer of … Continue Reading

DOL Says Most Independent Contractors Actually Employees

In furtherance of its agenda to extend minimum wage and other wage-hour protections as broadly as possible, on July 15, 2015, the Department of Labor issued a far-reaching interpretive memorandum expressing the DOL’s belief that “most workers [classified as independent contractors] are employees under the FLSA’s broad definitions.”… Continue Reading

NLRB Weighs-In on Franchise Joint Employers

In late April, the National Labor Relations Board (“NLRB” or the “Board”) General Counsel’s office issued an Advice Memorandum (“Advice Memo”) (No. 177-1650-0100, available here) addressing whether a franchisor (Freshii Development, LLC) was a joint employer with one of its franchisees (Nutritionality, Inc.).  The General Counsel’s office determined that the franchisor was not a joint … Continue Reading

Uber, Lyft Decisions Highlight Difficulty of Classifying Workers in the Modern Economy

“The test the California courts have developed over the 20th Century for classifying workers isn’t very helpful in addressing . . . 21st Century problem[s].”  So concluded the court in Cotter v. Lyft, Inc., one of two opinions handed down by the U.S. District Court for the Northern District of California on March 11, 2015, … Continue Reading

Supreme Court of New Jersey Rules on Test for Independent Contractors

On January 14, 2015, the Supreme Court of New Jersey decided which independent contractor classification test should be used in determining a person’s employment status under the New Jersey Wage Payment Law (WPL) and Wage and Hour Law (WHL).  In Hargrove v. Sleepy’s, LLC, No. A-70-12 (072742) (N.J. Jan. 14, 2015), the court concluded that … Continue Reading

Cal. Supreme Court Clarifies Standards for Class Certification of Independent Contract Class Actions

On Monday, the California Supreme Court issued yet another decision on class certification; this time in an action challenging the independent contractor (“IC”) classification of a proposed class of Antelope Valley News newspaper deliverers, Ayala v. Antelope Valley Newspapers, Inc.  Although much of the case addresses the proper standards for evaluation of whether a person … Continue Reading

Court of Appeal Affirms Summary Judgment in Favor of Farmers Insurance on Independent Contract Issue

By Thomas Kaufman and Anna Stancu On July 11, 2013, the Second Appellate District in Beaumont-Jacques v. Farmers Group Inc.concluded as a matter of law that a worker’s ability to exercise meaningful discretion in her job-related efforts rendered her an independent contractor, regardless of Farmers’ input regarding the “quality and direction of her efforts.”  The … Continue Reading

Sotelo Decision is Packed With Class Action Goodness

By Thomas Kaufman; (follow me on Twitter) A First Appellate District decision from May 31, 2012, Sotelo v. Medianews Group, Inc.; was published yesterday.  The opinion contains an in-depth discussion on class action concepts arising out of a case alleging misclassification of newspaper carriers as independent contractors.  The opinion cuts back on some pro-certification precedents, sets forth some anti-certification law for independent contractor cases, … Continue Reading

California Legislature Passes “Worker Misclassification” Bill Creating Civil Penalties For Willful Misclassification Of Independent Contractors

On September 8, 2011, the California legislature passed Senate Bill 459 prohibiting the willful misclassification of individuals as independent contractors. Labeled by some as the "Job Killer Act," this new legislation creates civil penalties of between $5,000 and $25,000 per violation. In addition to making it illegal to willfully misclassify individuals as independent contractors, the … Continue Reading

California Court Of Appeal Extends Armendariz To Cover Independent Contractors

In the seminal case Armendariz v. Foundation Health Psychcare, the Supreme Court of California established the standard for determining the enforceability of mandatory arbitration agreements for employees. Armendariz generally held that mandatory arbitration agreements were enforceable if they were mutual and did not "serve as a vehicle for the waiver of statutory rights." Armendariz set … Continue Reading

Ninth Circuit Applies California Law Despite Choice-Of-Law Clause in Independent Contractor Agreement

In Narayan v. EGL, Inc., the employer, EGL, Inc. (“EGL”), is a global transportation company that provides “air and ocean freight forwarding, customs brokerage, [and] local pickup and delivery service.” EGL is incorporated and headquartered in Texas, but it operates through a network of over 400 facilities in 100 countries. The case was brought by … Continue Reading

Ninth Circuit Extends Rehabilitation Act to Independent Contractors

On November 19, 2009, the Ninth Circuit handed down its opinion in Fleming v. Yuma Regional Medical Center, 07-16427. The court faced the difficult task of interpreting the interplay between Section 504 of the Rehabilitation Act (29 U.S.C. § 794) and Title I of the Americans with Disabilities Act. The Sixth and Eighth Circuits had … Continue Reading

The Ninth Circuit Reminds Employers That A Good “Independent Contractor” Is Hard To Come By

The existence of an employer-employee relationship is a necessary precursor to wage and hour protection under California law.  With its recent decision in NLRB v. E. Bay Taxi Drivers Ass’n et al., the Ninth Circuit reminded employers that they cannot simply avoid their wage and hour obligations by self-anointing individuals as "independent contractors" despite the … Continue Reading

Caution: Take A Second Look At Your Independent Contractors

In a suit filed by Air Couriers International ("Sonic") against the Employment Development Department ("EDD"), to recover employment taxes paid for drivers who operated as independent contractors, the California Court of Appeal rejected Sonic’s claim that the drivers were independent contractors and instead found that the drivers acted as Sonic’s employees.… Continue Reading

Is Your Independent Contractor Really an Employee?

by Greg S. Labate Employers often unintentionally misclassify workers as independent contractors when they should really be employees. This common error can lead to serious consequences, including audits, lawsuits, and liability. Accordingly, all employers should conduct a careful review of their independent contractor relationships to determine if they are valid and proper.… Continue Reading
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