Independent Contractors

Parting of the Joint Employers: Trump DOL Withdraws Past Guidance on Independent Contractor Standards and Joint Employment Yesterday the U.S. Secretary of Labor Alexander Acosta announced the Department of Labor’s withdrawal of guidance on independent contractors and joint employer liability issued in 2015 and 2016 by the Obama administration DOL. Generally, the guidance made more people employees rather than independent contractors. In particular, this guidance sought to (1) define more rigidly the situations in which a worker was found to be an employee under an “economic realities test” (even when an independent contractor relationship was intended), and (2) expand the joint employer doctrine taking into account “whether, as a matter of economic reality, the employee [was] economically dependent on the potential joint employer.”

The DOL’s roll back of Obama-era guidance signals an important shift in favor of employers, but no binding laws have changed. Employers should remember that the same statutes, regulations, and case law are still in force and the analysis applied to these issues remains the same, at least for the time being. In fact, the proper legal “test” for joint employer liability is currently on appeal in the D.C. Circuit in the Browning-Ferris case, with a decision expected later this year. For a more detailed look at the law on independent contractors and joint employers, see our previous blog posts on independent contractors and joint employment.  Be sure to keep an eye on how the DOL’s action affects these issues going forward.

Florida DEO Says Uber Drivers are Independent ContractorsFor anyone following the employee versus independent contractor battles, Uber just scored in Florida. The Florida Department of Economic Opportunity (DEO) says Uber drivers are independent contractors and are not entitled to unemployment benefits when Uber revokes their app. In fact, per the opinion, “Uber is no more an employer to drivers than is an art gallery to artists.” Given that many state agencies are actively hunting for misclassified employees (and the attendant uncollected employment taxes), this may be a significant victory for businesses who rely on independent contractors.

Darrin McGillis and Melissa Ewers aspired to be Uber drivers in Florida and got the Uber Technology, Inc.’s driver app. According to Uber, drivers use the app on their own terms— deciding when and how long to drive or to not drive at all—making them independent contractors not employees. It was all fun and games until somebody lost an eye app. Uber revoked McGillis and Ewers’ access to the app, and they filed for unemployment benefits (known as Reemployment Assistance in Florida). Although the Florida Department of Revenue said they were employees and entitled to benefits, Uber appealed and won.

The DEO opinion noted that Uber drivers not only have a written independent contractor agreement, they also control the details of their work, use their own vehicles, choose customers and can work for competitors, which casts Uber in the role of a “middleman or broker for transportation services,” not an employer. The Florida decision rejected rulings in California and Oregon to the contrary, finding that those decisions ignored the clear language of Uber’s contract with the drivers, as well as how the business operates, and were not consistent with Florida law. The opinion notes:

“As a matter of common sense, it is hard to imagine many employers who would grant this level of autonomy to employees—permitting work whenever the employee has a whim to work, demanding no particular work be done at all even if customers will go unserved, permitting just about any manner of customer interaction, permitting drivers to offer their own unfettered assessments of customers, engaging in no direct supervision, requiring only the most minimal conformity in the basic instrumentality of the job (the car), and permitting work for direct competitors.”

Not surprisingly, McGillis has already filed his appeal of this decision, so we can’t be sure how this will all shake out. Also, even if Uber prevails in this Florida administrative action, we don’t yet know whether courts in Florida will agree with it or whether Uber and other like-minded businesses can export it from the Sunshine State.

Upcoming Webinar: Independent Contractor or Employee? Avoiding Worker Misclassification Confusion Is your company at risk of being told that your independent contractors are actually employees? If the Department of Labor (DOL) breaks this news to you, what are the labor implications? What are the tax obligations? What are your legal obligations to a third party?

Join Bruce P. Ely, Summer Davis, and me next Wednesday, October 7, for a one-hour webinar for answers to these and other questions. This informative and practical webinar could help you avoid worker misclassification and the repercussions.

When:

Wednesday, October 7, 2015
11:30 a.m. to 12:15 p.m. CT

Register to attend the webinar.