Category Archives: Independent Contractors

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Back to the Joint Employer: Having Changed the Classification Test for Independent Contractors, Will the California Legislature Target the Joint Employer Test Next?

Y. Douglas YangBy Y. Douglas Yang on Posted in California Employment Legislation, California Legislative Update, Employment Agreements, Employment Lawyers, Employment Work, FEHA, Independent Contractors, Joint Employment, Labor and Employment, Legal Info, Minimum Wage, Wage and Hour
As reported here and here, California recently enacted new legislation – Assembly Bill 5 – that expanded the scope of an “employee” under state law.  Beginning January 1, 2020, the answer to whether a person providing services in California is an independent contractor (as opposed to an employee) under the California Labor Code, the Industrial … Continue Reading

New Jersey Bill Would Codify a Stricter Version of ABC Test for Determining Independent Contractor Status

James HaysSean KirbyBy James Hays, Sean Kirby and Myles Moran* on Posted in Independent Contractors, New Jersey Legislative Update
On November 7th a bill was introduced in the New Jersey legislature that would, like California’s AB 5 (see our previous blog here), codify a stricter version of the ABC test for determining independent contractor classification. The bill, S4204 (text available here), also affirms New Jersey courts’ use of the ABC test under the state’s … Continue Reading

It’s Official: Newsom Expands The Definition of “Employee” Under California Law

Timothy KimBy Timothy Kim on Posted in Arbitration Agreements, California Legislative Update, Class Actions, Discrimination, FEHA, Independent Contractors, Wage and Hour
On September 18 2019, Governor Gavin Newsom signed into law AB-5, which codified the California Supreme Court’s Dynamex v. Superior Court decision.  In Dynamex, the California Supreme Court adopted the so-called “ABC” test to determine coverage under the Industrial Welfare Commission (“IWC”) Wage Orders.  AB-5 expands the application of the ABC test to the entire … Continue Reading

Three Major Workplace Bills to Land on Gov. Gavin Newsom’s Desk

Timothy KimBy Timothy Kim on Posted in Arbitration Agreements, California Legislative Update, Class Actions, Discrimination, FEHA, Independent Contractors, Wage and Hour
Following the launch of the so-called “MeToo” movement, the California Legislature (controlled by a Democratic supermajority) has aggressively churned out new bills that further strengthen the ability for workers to sue their employers and increase the already-significant regulatory burden on these companies. This fall, the California Legislature is geared to send three significant bills to … Continue Reading

Unintended Consequences: Dynamex and California Health Care Employers

Gregg FischBy Gregg Fisch, Chris Bell (Partner, Moss Adams) and Chris Parker (Senior Manager, Moss Adams) on Posted in Independent Contractors
This article originally appeared in Healthcare News on August 6, 2019. The California Supreme Court’s 2018 landmark decision, Dynamex Operations West, Inc. v. Superior Court (Dynamex), redefines the employment relationship between entities and workers in California and creates one of the most stringent standards in the United States for classifying workers as independent contractors. Applying … Continue Reading

Which Are They? Independent Contractors Or Employees? Navigating The Conflicts Between State And Federal Law

Keahn MorrisJohn BolestaBy Keahn Morris and John Bolesta on Posted in Independent Contractors, National Labor Relations Act, National Labor Relations Board
UberX and UberBLACK Drivers Are Not Employees for Purposes of the NLRA According to the NLRB General Counsel’s Division of Advice (GC), Uber’s UberX and UberBLACK drivers are independent contractors exempt from the rights and protections of the National Labor Relations Act (NLRA), including the right to form and join unions.  Advice Memo, dated April … Continue Reading

The Future of Independent Contractors: Ninth Circuit Applies Dynamex Retroactively and the DLSE Issues Opinion Letter Expanding Its Scope

Justine PhillipsTimothy KimAndrea IsaacsBy Justine Phillips, Timothy Kim and Andrea Isaacs on Posted in Class Actions, Employment Work, Independent Contractors, Wage and Hour
Last year, the California Supreme Court decided Dynamex Operations West, Inc. v. Superior Court of Los Angeles, a landmark decision that dramatically increased the risk of misclassifying individuals as independent contractors. As previously reported, although Dynamex replaced the longstanding Borello standard with the “ABC” test, it also left two critical questions unaddressed. First, Dynamex did … Continue Reading

National Labor Relations Board Issues Decision Overruling Obama-Era Independent Contractor Test: What This Means For (Putative) Employers

Ryan MunitzBy Ryan Munitz on Posted in Independent Contractors, National Labor Relations Act, National Labor Relations Board, NLRB
In a business-friendly decision issued on January 25, 2019, the National Labor Relations Board (“NLRB” or “Board”) revised its test for determining whether putative independent contractors are exempt from coverage under the National Labor Relations Act (“NLRA”). See SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019) (“SuperShuttle”). The Board’s SuperShuttle decision affirmed a 2010 Acting … Continue Reading

SCOTUS Holds Independent Contractor Truck Drivers Exempt from Arbitration Under FAA

Amy HarwathBy Amy Harwath on Posted in Arbitration Agreements, Federal Arbitration Act (FAA), Independent Contractors, Labor and Employment, SCOTUS, Wage and Hour
On January 15, 2019, the Supreme Court issued its decision in New Prime Inc. v. Oliveira, where it decided independent contractor truck drivers cannot be forced into arbitration.  The Court’s decision is based on Federal Arbitration Act § 1, which excepts from coverage disputes involving “contracts of employment” with “workers engaged in foreign or interstate … Continue Reading

California Court of Appeal Affirms That Dynamex’s ABC Independent Contract Test Is Limited To Claims Arising Under Wage Orders

Patricia JengBy Patricia Jeng on Posted in Independent Contractors, Labor and Employment, Wage and Hour
In Jesus Cuitlahuac Garcia v. Border Transportation Group, LLC, et al, the California Court of Appeal, Fourth Appellate District has held that the ABC test set forth in Dynamex Operations West, Inc. v. Superior Court, 4 Cal.5th 903 (2018) applies only to causes of action brought under wage orders. Plaintiff Garcia was a taxicab driver … Continue Reading

The Dynamex Decision: The California Supreme Court Restricts Use of Independent Contractors

Timothy KimBy Timothy Kim on Posted in Class Actions, Employment Work, Independent Contractors, Labor and Employment, Wage and Hour
On Monday, April 30, 2018, the California Supreme Court issued a landmark decision in the matter of Dynamex Operations West, Inc. v. Superior Court of Los Angeles. In a voluminous, 82-page decision, the California Supreme Court reinterpreted and ultimately rejected the Borello test for determining whether workers should be classified as either employees or independent … Continue Reading

Uber Drivers’ Class Action Lawsuit Hits Permanent Red Light

Stephen FoxJonathan ClarkBy Stephen Fox and Jonathan Clark on Posted in Class Actions, Fair Labor Standards Act (FLSA), Independent Contractors
Last week, the ridesharing giant, Uber, secured a resounding legal win when a federal judge dismissed a putative class action lawsuit alleging the company violated the Fair Labor Standards Act by failing to pay drivers overtime. The ruling is enormously important, not simply for Uber, but for the growing rideshare technology industry as a whole. … Continue Reading

UPDATE: NYC Adopts New Rules Implementing Freelance Law

Lisa LewisDanielle ThompsonBy Lisa Lewis and Danielle Thompson on Posted in Independent Contractors, New York Employment Legislation, Payroll, Retaliation
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

James HaysJason BrownBy James Hays and Jason Brown on Posted in Fair Labor Standards Act (FLSA), Independent Contractors, Joint Employment, Wage and Hour
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

Lisa LewisDanielle ThompsonBy Lisa Lewis and Danielle Thompson on Posted in Independent Contractors, New York Employment Legislation, Payroll, Retaliation
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

By Sheppard Mullin on Posted in Independent Contractors, National Labor Relations Act, National Labor Relations Board, NLRB
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

Lisa HarrisMarlene NicolasLindsay HollomanBy Lisa Harris, Marlene Nicolas and Lindsay Holloman on Posted in California Employment Legislation, California Legislative Update, Discrimination, E-verify, Educational Updates, Employee Benefits, Employment Authorization Verification, FEHA, Hiring, Discipline, Termination, Independent Contractors, Leaves of Absence, Reasonable Accommodation, Religion, Retaliation, Wage and Hour
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

Paul BerkowitzBy Paul Berkowitz on Posted in Independent Contractors, National Labor Relations Act
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

By Sheppard Mullin on Posted in Employment Agreements, Fair Labor Standards Act (FLSA), Independent Contractors, Wage and Hour
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

Kevin SmithBy Kevin Smith on Posted in Independent Contractors, National Labor Relations Act, Union Issues
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

Evan MixBy Evan Mix on Posted in Class Actions, Independent Contractors, Wage and Hour
“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

By Sheppard Mullin on Posted in Independent Contractors, Wage and Hour
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

Thomas KaufmanBy Thomas Kaufman on Posted in Class Actions, Independent Contractors, Wage and Hour
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
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