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Cracking Down on Employers Misclassifying Employees as Independent Contractors

By | Employment, Freelancer, Human Resources, Independent Contractor, Misclassification, Payroll

JDSUPRA reports: New Jersey has joined California and New York City by adding significant new penalties and requirements on employers doing business in the Garden State, including new penalties for misclassifying workers as independent contractors and new posting requirements effective April 1, 2020. Illinois, New York, Oregon, Washington, Wisconsin, and Florida considered various forms of legislation on worker misclassification in 2019, and other states may soon join the parade.

Employers in New Jersey now face penalties and other requirements set forth in six new statutes for the misclassification of workers as independent contractors. All but one of the laws already took effect this year. The new one requires employers to post a warning against the misclassification of employees and is effective today, April 1, 2020. Read more details.

Gig Worker Unemployment Benefits

By | Business, Employment, Human Resources, Independent Contractor, Misclassification, Payroll

Bloomberg law reports: Last week, CA Assembly member Lorena Gonzalez (D), the author of A.B. 5, wrote the EDD to ensure unemployment insurance is given to workers misclassified as independent contractors.

Under AB5, companies such as Uber could be on the hook if they don’t provide benefits for workers that the state government considers employees. Further when a Covid-19-afflicted driver files an unemployment claim, an investigation into whether a worker is really a contractor may prevail in favor of further benefits.

Read entire article here.

Coronavirus Summary of CDC Recommendations

By | Advice, Business, Employment, Independent Contractor

The National Law Review’s recent article helps HR managers prepare for Coronavirus pandemic: Remember, as you review the article, and the CDC’s recommendations, it does not relieve an employer of obligations they may have under the American With Disabilities Act (ADA), the Family Medical Leave Act (FMLA), the Fair Labor Standards Act (FLSA), the National Labor Relations Act (NLRA), or other applicable federal or state laws, some of which are discussed below in the context of pandemic planning.

It is also important to remember public health orders can trump all other relevant laws, especially when they impose a quarantine.

Contact VentureTemp for best practices and mitigating risk as well as promoting safety in the work environment.

AB5 Aftermath Insight

By | Business, Employment, Human Resources, Independent Contractor, Misclassification

JDSupra sheds insight: The debate over so-called “worker misclassification” is certain to continue, both as California lawmakers attempt to untangle the knotty web of AB 5, and other states (perhaps) enter the ring—although it is hoped that these states slow their race to the finish, in light of the dramatic uncertainly California’s “experiment” has revealed.  Read AB5 refresher and details all employers should know.

Biden Supports AB5, Backlash from Democrat ICs

By | Business, Human Resources, Independent Contractor, Payroll, Technology reported last night on March 8th: Four days after voting ended in the delegate-rich CA primary, Democrat presidential candidate former Senator/former Obama VP Joe Biden has Tweeted support for AB 5, the “gig economy” bill backed by organized labor and enacted in 2019 by CA’s Dem majority legislature that freelance professionals in multiple fields (from musicians to writers to caterers to trucks) say has cost them jobs by requiring those who hire them to treat then as formal employees (subject to costly and complex CA labor laws and regulations) instead of as more flexible independent contractors.

Read more here as Businesses and Independent Contractors plan voting Red instead of Blue to save their livelihood: “The Democratic Party has lost me. I’m so tired of not being heard. It’s time to vote for those listening!” 

Further reporting from Blaine Traber cites: “Being in the pocket of Big Labor is the latest indicator Joe Biden isn’t fit for presidency….AB5 is a product of California Democrats and their allegiance to Big Labor. The measure has been sold as a way to protect gig employees even though a majority of those affected never asked for those protections. The reality is this is a play for labor bosses who want people forced into employee relationships with companies, thus expanding Big Labor’s control over the workforce.”

Hiring Independent Contractors in Oregon

By | Business, Employment, Human Resources, Independent Contractor

The National Law Review describes the Oregon landscape for Independent Contractors:

The state of Oregon has six agencies that regulate the employment of individuals in Oregon: the Department of Revenue, Employment Department, Construction Contractors Board, Landscape Contractors Board, Department of Consumer and Business Services’ Workers’ Compensation Division, and Bureau of Labor and Industries’ Civil Rights Division and Wage and Hour Division.

These agencies use different legal tests to determine whether or not an individual qualifies as an independent contractor. Thus, a finding of independent contractor status by one agency does not guarantee the same finding by another. For example, the Department of Revenue might find a worker to be an independent contractor, while the Workers’ Compensation Division might consider that same worker an employee.

The Department of Revenue, Employment Department, Construction Contractors Board, and Landscape Contractors Board apply a statutory test to determine independent contractor status. The Civil Rights Division and the Workers’ Compensation Division both apply a common law right-to-control test. And the Wage and Hour Division applies a common law economic realities test.

Learn details regarding pitfalls and best practices.

Uber Classification Dispute in Pennsylvania

By | class action lawsuit, Independent Contractor, Misclassification

Bloomberg Law reports: [Uber] drivers put forth enough evidence to go to trial on their claims that they were misclassified as contractors under the Fair Labor Standards Act and Pennsylvania law, the U.S. Court of Appeals for the Third Circuit said.

Nationally, this is the first court of appeals case involving Uber—or any gig economy company—to address misclassification under the FLSA standard, said Travis Lenkner of Keller Lenkner LLC, a firm that represented the UberBLACK drivers on appeal in the proposed class action. In previous disputes that rose to the appeals court, drivers ultimately were compelled to arbitration. Read entire article.

Spotify Faces Class Action Lawsuit

By | class action lawsuit, Employment, Independent Contractor, Misclassification

Dylan Smith reported on March 2: Matthew Elias submitted the lawsuit both on his behalf and on behalf of “all others similarly situated and allegedly aggrieved,” according to court documents shared with Digital Music News. In the filing, Elias, who says he was a nonexempt employee for Spotify between July 2016 and July 2018, alleges that he was misclassified as an independent contractor roughly one year into his tenure.

Read details here.