We’ve posted on this topic several times before but the battle between independent contractors and employees continues.

Here’s a brief refresher on the basics of why proper classification of employees as independent contractors or employees matters:

  • Employees (not independent contractors) are entitled to workers’ compensation and unemployment benefits.
  • Employees (not independent contractors) have taxes withheld on payroll. Independent contractors are subject to self-employment taxes.
  • Federal and state employment discrimination laws cover employees, not independent contractors.
  • A company’s potential liability can depend on the individual’s status as an employee or independent contractor.

However, the legal landscape on how to classify a worker as an employee or independent contractor keeps changing, especially state-by-state.

Recent Developments in the Battle of Independent Contractors vs. EmployeesJust last month, the California state Assembly passed legislation that changes the landscape for workers in California and labels workers who perform services for hire (also known as “gig” workers) as employees (not independent contractors) by default. The new bill is the result of a 2018 California Supreme Court decision, Dynamex v. Superior Court, in which the court held that to classify a worker as an independent contractor, a company must show three things (now referred to as the “ABC” test): (a) the company does not directly control the worker, (b) the work falls outside the company’s usual course of business, and (c) the worker is customarily engaged in an independently established trade. And in May 2019, the Ninth Circuit, in Vazquez v. Jan-Pro Franchising International, Inc., held that Dynamex applies retroactively—i.e. to cases before the Dynamex decision was issued.

But recent guidance from the Department of Labor’s Wage and Hour Division (WHD) and the National Labor Relations Board (NLRB) indicates a shift of classifying similar “gig” workers as independent contractors, not employees like the California bill proposes. The WHD issued an opinion on April 29, 2019, refining the definition of independent contractor and focusing on the so-called “economic reality test,” which considers the degree of economic dependence the worker has on his or her employer. The WHD described it as “the touchstone of employee versus independent contractor status.” And just a few weeks later the NLRB issued an advice memorandum classifying a group of Uber drivers as independent contractors under the National Labor Relations Act, finding that Uber drivers have “significant opportunities for economic gain and, ultimately, entrepreneurial independence.”

So, what does all this mean? Employers should keep a careful watch on developments in this area of the law and particularly in the state(s) in which they do business. There is no one-size-fits-all approach to determining whether an individual is an employee or independent contractor, and the laws keep changing.

Request for Criminal Background CheckCan you ask a job applicant criminal history? As with so many legal questions, the answer is “it depends” — on where you work, in this case. A recently enacted law will change this answer for Colorado employers beginning as early as September 1, 2019. In just a few months, both public and private employers will be prohibited from asking prospective workers about their criminal history on job applications. This is a growing movement – commonly referred to as “Ban the Box” – across the country with 35 other states having similar laws on the books. Of those 35 states, 12 states apply the Ban the Box laws to private employers (we previously wrote about Tennessee’s Ban the Box law.) Colorado has become the 13th state to do so.

The Colorado law specifically forbids public and private employers from:

  • Advertising that a person with a criminal history may not apply for a position;
  • Placing a statement in an employment application that a person with a criminal history may not apply for a position; and
  • Inquiring about an applicant’s criminal history on an initial job application.

These restrictions do not apply when:

  • The law prohibits an individual with a certain criminal history from holding a particular job;
  • The employer is participating in a program to encourage employment of people with criminal histories; or
  • The employer is legally required to conduct a criminal history record check for the specific job.

The law takes effect on September 1, 2019, for employers with 11 or more employees, and on September 1, 2021, for employers with fewer than 11 employees. The Colorado Department of Labor and Employment (CDLE) will enforce the law and can issue warnings and orders of compliance for violations. If violations continue after warnings or orders, the CDLE may impose civil penalties. There is no private cause of action under the law, so job applicants cannot bring their own lawsuits.

Of importance, the law does not take away an employer’s ability to uncover whether a job applicant has a criminal history. Employers are still allowed to run background checks on prospective workers at any time and can still ask about the applicant’s criminal history during the interview. The law instead focuses on giving a job applicant the opportunity to sit face to face with a prospective employer and explain the applicant’s criminal history in person. With the law’s effective date quickly approaching, employers who operate in Colorado should check their job postings and applications to ensure they do not run afoul of this new law. Employers not in Colorado should check their own state’s law.

Exit EEOC? Supreme Court Rules that Charge-Filing Process Is Not Jurisdictional, But It’s Still ImportantIn a case that garnered big headlines, the Supreme Court weighed in yesterday on whether a claimant’s failure to amend her EEOC charge divests the federal court from hearing part of her Title VII claim. While the decision makes some strong statements about the purpose of an EEOC charge in Title VII litigation, it is not likely to change the landscape as much as the press buzz may indicate.

The Complicated Lower Case Saga

Ms. Lois Davis worked as an IT person for Fort Bend County. She made a claim of sexual harassment against her supervisor, Fort Bend investigated, and the supervisor resigned. After the resignation, Ms. Davis claimed that the county started retaliating against her for reporting the harassment. Because of the retaliation, she filed an EEOC charge. While the charge was pending, she was asked to report to work on a Sunday. Ms. Davis said that she had church duties that day, but she was told to show up or be fired. She chose church and was subsequently fired.

Ms. Davis attempted to amend her EEOC charge by simply writing “religion” on part of the charge document. She also added that she was terminated, but did not formally change the charge to include the alleged religious discrimination. She later filed suit against the county for religious discrimination and retaliation for reporting sexual harassment. The county moved for summary judgment, which was later appealed to the Fifth Circuit and all the way to the U.S. Supreme Court. When the case came back, the only claim left was the one on religious discrimination.

Although years had passed in the litigation, it was at this later stage that the county first decided to move to dismiss the case, claiming that Ms. Davis had not properly amended her EEOC charge to include religious discrimination. The District Court granted the county’s motion to dismiss finding that her failure to properly file the religion claim with the EEOC was jurisdictional and doomed her claim. The Fifth Circuit reversed finding that the charge-filing requirement is not jurisdictional but is instead “a prudential prerequisite to suit” and further found that the county waived its defense because it waited too long to raise it. The county appealed to the U.S. Supreme Court.

The Jurists on Jurisdiction

The Supreme Court’s opinion pointed out that the word “jurisdiction” has “many, too many, meanings” and that they are trying to stay away from using that term. Basically, the word should only apply when describing the types of cases a court can hear and the classes of people over whom it can rule. True jurisdictional challenges should be unique and can be raised at any point during the litigation.

The Supreme Court noted that there is a big difference between a jurisdictional mandate and a non-jurisdictional claim-processing rule. A rule simply seeks to promote the orderly progress of litigation by imposing certain procedural steps. A claim-processing rule can be “mandatory” in the sense that a court must enforce it if the party properly raises it. However, as was important in this case, a party asserting a claim-processing rule can waive that defense if it “waits too long to raise the point.” The Supreme Court cited numerous examples of these claim-processing rules in realms such as copyright and agency-rulemaking.

Ultimately, the Supreme Court noted that if Congress wanted to make the EEOC charge process a jurisdictional requirement, they could. However, at this point, the Supreme Court held that the charge-filing requirement was not jurisdictional, but instead was a mandatory procedural requirement and that the county waived its right to assert that defense by waiting too long to raise it.

What Does This Mean?

It is likely that this decision will cause a good bit of confusion in the near future. Claimants who have incomplete charge documents, or didn’t file charges at all, will likely now try to use this decision to avoid having their claims dismissed for not following the charge rules. However, it is very important to remember that U.S. Supreme Court did not throw out all those requirements. It simply said that since the EEOC charge-filing procedure is a mandatory claim-processing rule, it is up to the employer to raise that defense early. An employer cannot wait until later to try to bring up the lack of proper claim-filing as a jurisdictional defense.

This case again shows how important it is to pay attention to the EEOC charge in every case and to deal with any deficiencies early in the litigation. The Davis case does not prohibit an employer from filing a motion to dismiss on all or part of a Title VII suit because the charging document does not adequately describe a claim. Just don’t wait!