Nasaba panel 2011 pitfalls to avoid in classifying employees

Nasaba panel 2011 pitfalls to avoid in classifying employees

• 1.
  Sadhna G. True,Esq. Dinsmore & Shohl LLP 250 West Main Street, Suite 1400 Lexington, Kentucky 40507 859.425.1062 [email protected] June 2011 www.dinslaw.com
• 2.
  Implications of misclassification: Payroll taxes and deductions, along with penalties & interest  B Back wages, along with penalties & i k l ih li interest  Payment of contributions to employer-funded mandates, mandates such as the unemployment insurance fund and workers compensation  Liability for anti-competitive conduct, anti competitive including statutory civil penalties
• 3.
  Classification may beaddressed when someone raises:  A claim under the anti-discrimination laws  Li bili Liability f i j i caused b the worker’s for injuries d by h k ’ negligence  Liability to worker for injuries resulting from company’s negligence  Eligibility for union membership  Eligibility for benefits
• 4.
   Test applied by IRS is based on principles of “agency” – is the worker serving as an agent of the company?  Multi-factored Multi factored test – under current law, no law one factor dominates over the others; balancing test employed or “totality of the totality circumstances.”
• 5.
   The IRS has divided the factors into three categories: t i 1) Behavioral: Does the company control or have the right to control what the worker does and how the worker does the job? 2) Financial: Are the business aspects of the worker’s j b controlled b th company? k ’ job t ll d by the ? 3) Type of Relationship: Are there written contracts or employee-type benefits? Will employee type the relationship continue and is the work performed a key aspect of the business?
• 6.
   Best practices: ◦ Apply the factors rigorously and recommend that the employer make changes in the relationship with the worker to ensure that the balancing test favors the employer’s classification decision. ◦ Use written agreements with independent contractors. ◦EEmployers must b consistent i th i l t be i t t in their classification decisions.
• 7.
   The case of the claims adjuster: ◦ Sheryl Want worked for American Risk Ins. Co. for less than 3 months handling claims for property damages made by homeowners following Hurricane g y g Ike. She brought suit under the FLSA for overtime.  She paid for her own state license.  She worked with little supervision. supervision  She set her own hours.  She was free to work for other insurance companies.  She was paid on a hourly basis.  She knew her position was temporary and that ARI considered her an independent contractor. p
• 8.
   The Fifth Circuit affirmed the U.S. District Court’s conclusion that Ms. Want was an independent contractor. Thus, her claim for overtime pay was denied. denied Talbert v Am Risk Ins Co , 405 F App’x 848 v. Am. Ins. Co. F. App x (5th Cir. 2010).
• 9.
   Victoria Torley was employed by Georgia Community Care Solutions and provided services to a related entity, CSS Healthcare Services. Services She was fired after encouraging the CSS workforce to establish a collective bargaining unit. She claimed an unfair labor g g practice.
• 10.
   The Eleventh Circuit affirmed the determination by the NLRB that Ms. Torley was an employee. NLRB V. CSS Healthcare Servs., Inc., No. 10- 13736, 13736 2011 U S App LEXIS 6577 (11th Cir U.S. App. Cir. Mar. 30, 2011).
• 11.
   Five exotic dancers brought a wage and hour action against the owners of “The House,” a ti i t th f “Th H ” gentlemen’s club in Washington, D.C. ◦ Degree of control – favored employee status. g p y ◦ Opportunity for profit or loss and Investment in the business – favored employee status. ◦ Degree of skill and independent initiative required – favored employee status. ◦ Permanence or duration of the working relationship – favored independent contractor status. ◦ Integral part of the employer's business – favored employee status.
• 12.
   Dancers were found to be employees, and thus were owed minimum wage, overtime pay, etc. Thompson v. Linda & A., Inc., No. 09-1942 (BAH), (BAH) 2011 U S Dist LEXIS 46078 (D D C U.S. Dist. (D.D.C. Apr. 29, 2011).