To help understand recent developments, a bit of background
is in order.
Historically, there was no issue. Employers paid employees for
their time and labor. The amount depended on the relative bargaining power of
each and of course was almost always determined by the employer. The employer
simply paid a wage as low as possible that would still get people to come and
work. And lest you think I’m talking about ancient history, look again at Upton
Sinclair’s book, “The Jungle”
which was mentioned in a previous article. Those practices were the rule rather
than the exception. A worker received pay and that was it! No minimum wage. No
overtime. No insurance of any kind. Show up. Do your work. Shut up. Take it or
leave it.
We all know that things have changed. Federal and state laws
require employers to provide various benefits to employees in addition to requiring
the payment of a minimum wage and other compensation. There are even some that
argue that the pendulum has swung too far…that all these requirements sometimes
make it too costly for employers.
There is no doubt that employers face a lot of different
costs, in addition to actual wages. These include FICA (employers portion of
social security and Medicare), unemployment insurance, workers’ compensation
insurance, health insurance, and overtime pay to name a few.
When you consider that if a person doing work for someone
else, or a company is an independent contractor, all these costs go away, it is
easy to see why employers would like you to be an independent contractor
instead of an employee.
And there is the rub. While in the majority of situations it
is easy to determine the difference between an independent contractor and an
employee, there are an awful lot of gray areas. And it is in these gray areas
that you find both unscrupulous employers trying to “beat” the system, as well
as people that in good faith try to figure out on which side of the line they
should be.
Because of the gray areas, the courts have been trying to
define the differences for a very long time. Almost seventy-five years ago the
issue made its way the U.S. Supreme Court. In Board
v. Hearst Publications it held that:
"Few problems in the law have given greater variety of
application and conflict in results than the cases arising in the borderland
between what is clearly an employer-employee relationship and what is clearly
one of independent, entrepreneurial dealing.”
Nor have things gotten any easier. If anything, the issue
has become more complicated with modern technology. High speed reliable
internet has resulted in a major increase in the number of people working from
home. Moreover, employers continue to push the envelope, exploring every avenue
that will allow them to classify people that do work for them as independent
contractors instead of employees. Indeed, it has been argued that if some industries,
such as ride sharing (think Uber and Lyft), package delivery services, and software
developers to name a few, were forced to classify their workers as employees,
they would collapse.
Regardless of whether or not this is true, no one can
argue that more and more companies are coming up with business models that rely
on workers being independent contractors rather than employees.
So the challenge becomes to come up with rules and criteria
that will allow us to make the distinction in specific cases.
Some are easy.
The worker that goes to work every day, clocks in, or goes
to his office/cubicle, has a supervisor, works according to a schedule, and does
the work assigned by his employer, is an employee. No gray areas here. Nothing
confusing.
Now consider the flip side. You hire someone to come and
paint your house. He quotes you a price. You agree to pay a deposit with the balance
due on completion. He gives you a date by which the job will be completed. While
the project is underway there are days where he works all day. There are days
when he works a few hours a day. He provides his own supplies and equipment.
This man is clearly an independent contractor. Again, no gray areas. Nothing
confusing.
But in between those two easy examples, there is a
tremendously huge gray area.
Since the Supreme Court decision in Hearst, there
have been a lot of federal and state decisions in which the court has attempted
to set forth an objective test to distinguish between employees and independent
contractors. It’s not easy and there have been a lot of conflicting decisions.
The most recent significant decision has come from
California. The case of Dynamex
Operations West, Inc. v. Superior Court may be pivotal. Not only does the
court set forth objective criteria to determine whether or not an worker is an
employee or an independent contractor, it sharply restricts the circumstances
under independent contractor status will be found.
This case involved a lawsuit by drivers engaged by Dynamex
Corporation as delivery drivers. Dynamex classified the workers as independent
contractors, so they had no guarantee of receiving minimum wage, did not receive overtime
compensation, workers’ compensation coverage or unemployment coverage. The
workers sued, saying that regardless of what Dynamex chose to call them, they
were in fact employees, entitled to all the benefits and protections that other
employees received.
The court held in favor of the workers and fashioned the
A-B-C test, described as follows:
1. Part A: Is the worker free from the control and direction
of the hiring entity in the performance of the work, both under the contract
for the performance of the work and in fact?
2. Part B: Does the worker perform work that is outside the
usual course of the hiring entity's business?
3. Part C: Is the worker customarily engaged in an
independently established trade, occupation, or business of the same nature as
the work performed for the hiring entity?
These are tough tests for a person or entity engaging
workers to fulfill. They are even more difficult because the court also held
that the burden of proof is on the employer to establish ALL of these three
tests. Failure to establish even one of the three will result in the worker
being classified as an employee.
While it is true that the decision in this case applies only
to California, a review of the history of prior California decisions in this
area, and how they came to be adopted by other states and even federal courts,
suggests that this is the direction that will be followed in the future.
This decision will likely affect many of the industries that
make use of “independent contractors” such as ride sharing services, delivery
services and so forth.
What does this all mean to you? Well given that many employers
attempt to avoid their legitimate obligations by designating workers as
independent contracts as opposed to employees, it is not unreasonable to expect
that at some point you may find yourself in this position. Wanting to work for
some person or entity, but being told that you will not be an employee, but
instead an independent contract, and will be asked to sign documents to that
effect.
Despite the hype that may accompany such a request, it is
almost never to your advantage to be classified as an independent contractor.
You will not have any of the benefits or protections provided under state and
federal law to employees. You will be responsible for paying taxes that have
not been withheld. You will have to pay all of the self-employment tax where as
an employee you would pay only half. If you are hurt on the job, there is no
workers compensation coverage for you. When you are terminated there are no
unemployment benefits.
So what is your remedy?
You can, and should bring a claim for all the
benefits that you should have received as an employee. Back pay if you did not
receive minimum wage or overtime. If you get hurt, for all the benefits you
would have received under workers’ compensation. Payment of any self-employment
taxes you night have had to pay. In short, everything.
And don’t worry about whatever you may have been required to
sign saying that you are an independent contractor. Almost all states and
certainly the federal government ignore those “agreements” and look to the
actual relationship of the parties.
The pay-off can be substantial. Many states have punitive
provisions (up to three times actual amount) for unpaid wages. If there have
been any tax consequences for failure of the “employer” to withhold, you can
recover those. If you were injured on the job, you can recover all medical
bills and lost wages because the employer should have been providing workers’
compensation coverage. Likewise if the “Employer” is subject to health
insurance coverage for its employees but provided you none because you were an
independent contract.
The list goes on and on, but you have to be aggressive
and pursue your rights.
Remember, as with all of these issues, if you think you have
a claim or a grievance, Be Your Own Lawyer will always review it for you at no
cost.
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