Independent Contractors

Welcome back for this month’s edition of the Bubbler!  There’s plenty to talk about, so let’s jump right in.

The California Supreme Court issued an important decision this week addressing the test for whether a worker is an independent contractor or an employee.  The U.S. Supreme Court declined to review a Seventh Circuit decision upholding an employer’s rule that a months-long leave of absence was not a reasonable accommodation. The Ninth Circuit held that employers are prohibited from using an employee’s past salary as a legitimate “factor other than sex” for purposes of defeating a Fair Pay Act claim, emphasizing that allowing the inclusion of prior salaries would only perpetuate gender pay disparity. The Fifth Circuit downsized ERISA fiduciary standards in a ruling that invalidated a set of seven expansive fiduciary rules. The Northern District of Illinois issued an unusual ruling, holding that two plaintiffs’ claims were subject to an enforceable arbitration agreement, yet refused to compel arbitration. The DOJ challenged a set of competitors’ no-poaching agreements as per se violations of the Sherman Act, which regulates concerted anti-competitive action. Finally, in the wake of the #MeToo movement, New York (state and city) have passed new laws concerning workplace sexual harassment.

As always, stay tuned for more employment matters updates!

This week, the California Supreme Court rejected the old “totality of circumstances” test to determine if a worker was properly classified as an independent contractor in favor of a new “ABC test” under which employers will be required to classify most workers as employees.

Continue Reading California Rewrites the Independent Contractor Test – What Your Business Needs To Do Now to Pass It

On December 1, 2017, two weeks after being sworn in, NLRB General Counsel Peter Robb issued his first GC Memorandum. When the General Counsel’s office changes hands from one party to the other, some disruption is expected. Here, Mr. Robb made quite clear that his agenda would not support many of the Obama-era initiatives. In fact, he called into question fifteen significant legal issues that will now be subject to “alternative analysis” (i.e., seeking reversal of earlier precedents that Mr. Robb deems to be wrongly decided), rescinded seven memoranda, and revoked five initiatives.

As Mr. Robb’s agenda continues to unfold, we will track significant developments to explain how these decisions will impact employers. Here is the list of his actions so far plus an added bonus – NLRB decisions overruling Obama-era NLRB rulings:

Continue Reading The NLRB’s General Counsel Rescinds, Revokes and Questions

In a previous post we discussed the significant new obligations New York City’s “Freelance Isn’t Free Act” imposes on employers that retain the services of freelance independent contractors. On May 15, these requirements became effective for all freelance contracts executed on or after that date. Some of the law’s key provisions include the requirements that freelance services in excess of $800 be detailed in written contracts and that employers provide payment for freelance services within 30 days, and a prohibition on retaliation against freelancers who exercise their rights under the law.

The New York City Department of Consumer Affairs, Office of Labor Policy Standards has issued some limited initial guidance on the law but, as we discussed in our earlier post, numerous questions remain concerning the law’s practical implications. Please stay tuned to Employment Matters for updates as we continue to monitor this law’s impact on companies that rely on freelance workers.

Today we continue with our Year in Review segment, which looks at the key labor & employment law developments from 2016 in New York, the DC Metro Area, Massachusetts, and California, while offering our thoughts on 2017. Last week we covered New York and the DC Metro Area.  Now we turn to Massachusetts.  In addition, please join us in NYC on April 6, 2017 for Mintz Levin’s Third Annual Employment Law Summit as we address some of the key labor & employment issues impacting employers in 2017.  Register here.

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2016 Massachusetts Employment Law Year in Review

From case law interpreting one of, if not, the most employee-friendly independent contractor statute in the country to Beacon Hill’s efforts to pass non-competition agreement reform, Massachusetts is certainly no stranger to key developments in the labor and employment arena. This blog post highlights the 2016 case law and legislative efforts about which every Massachusetts employer should be aware, and provides insight over what to watch for as we move our way along through 2017 and beyond.

Continue Reading 2016 Massachusetts Employment Law Year In Review

The Fourth Circuit recently ruled that a general contractor was the joint employer of employees of its subcontractor for purposes of the Fair Labor Standards Act.  Salinas v. Commercial Interiors, Inc. has broad implications for the wage and overtime responsibilities of employers located within the Fourth Circuit, which has jurisdiction over appeals from federal courts located in Maryland, Virginia, North Carolina, South Carolina, and West Virginia.

Continue Reading Fourth Circuit Offers New Test for Joint Employment under FLSA

As 2016 came to a close, New York City became the first in the nation to enact a law establishing payment protections and remedies for freelance workers.  On November 16, 2016, Mayor de Blasio signed into law the Freelance Isn’t Free Act, which will go into effect on May 15, 2017.  This new law imposes several significant requirements on freelance work arrangements, which we discuss below.

Continue Reading New York City Enacts Nation’s First Freelance Worker Protection Law

Relying on its precedent, the First Circuit Court of Appeals held for the second time this year that the Federal Aviation Administrative Authorization Act of 1994 (“FAAAA”) preempts application of the Massachusetts Independent Contractor Statute, M.G.L. c. 149, Section 148B, to couriers working for Federal Express and other same-day delivery companies.  As a result, these companies can continue to save billions of dollars each year in the costs associated with employees, such as overtime, health benefits, and workers compensation insurance

Continue Reading Same-Day Delivery Companies: 2; MA Independent Contractor Statute: 0. First Circuit Once Again Upholds Classification of Couriers as Independent Contractors

Last Thursday, Uber settled two closely-watched class actions contesting Uber’s classification of approximately 385,000 drivers in California and Massachusetts as independent contractors as opposed to employees. While the plaintiffs viewed the settlement as a victory, so likely did Uber, as it allows Uber to continue to pursue an on-demand independent contractor service business model.  The court, however, still needs to approve the settlement and whether it will do so is not clear. Continue Reading Uber Aims to Settle Two Class Actions; Approximately 385,000 Uber Drivers in California and Massachusetts to Remain Independent Contractors – At Least for Now

The Uber saga continues in O’Connor v. Uber Technologies, Inc. – a closely watched case that will impact the future of the gig economy.  Last time we visited this case, the 9th Circuit Court of Appeals had declined to review the district court’s class certification decision, which certified a class of thousands of Uber drivers.  This time around, the District Court issued an order that expanded the original class.  But Uber has already countered with a move of its own in response to this latest decision.  We discuss the latest below.

Continue Reading Uber Class Action Update: Court Finds Arbitration Agreement Unenforceable and Broadens Class of Drivers