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1 This Webcast Will Begin Shortly If you have any technical problems with the Webcast or the streaming audio, please contact us via at: Thank You!
2 The Risks of Employee Misclassification Employee vs. Independent Contractor Association of Corporate Counsel June 11, 2014 Presented by: Robert C. Nagle, Esq. Vincent Reilly, Senior Counsel, AmeriHealth Caritas
3 Employee or Independent Contractor? EXAMPLE 1 Sam the Salesman Sam sells durable medical equipment for manufacturer DME Company, pursuant to a Sales Rep Agreement between DME and Sam s limited liability company, SamCo. Sam is the sole owner of SamCo, which has no employees. The Agreement states that SamCo is an independent contractor, not an employee of DME. Sam works from his home office and sells on the road at the customer s place of business. He is paid on a straight commission basis. He is not reimbursed for his expenses, such as travel, mileage and accommodations while on the road. Sam does not participate in DME-sponsored benefit plans. The Sales Rep Agreement includes a provision which permits SamCo to sell other products, but not those of competitors. SamCo derives substantially all of its revenues from DME. 3
4 Is Sam an Employee or an Independent Contractor? Employee Independent Contractor It depends 4
5 Agenda Independent Contractor or 1099 Misclassifications Recognize the issue Understand the dimensions / parameters of the potential problem Overview of applicable legal principles Practical considerations 5
6 Why Would a Company Want to Engage Independent Contractors Instead of Employees? Cost Employer s Share of Payroll Taxes Avoided Social Security taxes Medicare taxes Unemployment taxes Decreased Administrative Costs Benefit Plans and Overtime Affordable Care Act Save as much as 30% of payroll costs (competitive advantage over other employers) Worker s Compensation 6
7 Exempt from Coverage Under Workplace Laws Employment laws are based on employee/employer relationship Wage and hour laws State wage payment laws Anti-discrimination laws (e.g. Title VII, ADA, ADEA) National Labor Relations Act FMLA WARN Act Unemployment compensation Worker s compensation Perhaps no liability for torts committed by independent contractors No requirement to obtain proof that workers are eligible to work in the US (I-9) No legal responsibility for withholding taxes 7
8 Differences between General Tax Responsibilities of Employees and Independent Contractors Individuals classified as employees Individuals classified as independent contractors Type of tax Businesses general responsibilities Workers general responsibilities Businesses general responsibilities Workers general responsibilities Federal income tax Social Security and Medicare taxes Federal unemployment tax State unemployment tax Withhold tax from employees pay Withhold one half of taxes from employees pay and pay other half Pay full amounts owed, generally through withholding Pay half of total amounts owed generally through withholding Generally, none None Pay full amount None None None Pay full amount, except in certain states None, except pay partial amount in certain states None Pay full amounts owed, generally through estimated tax payments Pay full amounts owed, generally through estimated tax payments None 8
9 Who s interested in misclassification? Agency DOL IRS EEOC NLRB The Workers! SSA State and Local Agencies Affected Areas Wage & Hour (FLSA) Unpaid Leave (FMLA/USERRA) Immigration/I-9 issues Federal income and payroll taxes ACA Employment discrimination Union organizing, ULPs, and collective bargaining Overtime, employee benefits, etc. Retirement and disability coverage and payments Unemployment State income taxes Worker s compensation Wage & Hour and Wage Payment 9
10 Why does it matter? Wage and Hour Actions Federal and State Civil lawsuits, back-pay awards and significant civil penalties (liquidated or treble damages, attorneys fees, costs) Collective actions last a long time and are extremely expensive Attorney General and DOL audits/enforcement actions can also be brought Have to worry about lawsuits on different levels Serious and expensive employee benefits consequences Failure to provide benefits under employee benefits plan Exposure for worker s compensation benefits and unpaid premium Exposure for unpaid state unemployment insurance premiums Serious and expensive tax consequences Failure to pay state/federal payroll taxes subject to wages 10
11 Increased Enforcement Efforts The U.S. Department of Labor (DOL) is engaged in a multiagency initiative to strengthen federal and state efforts to identify employee misclassification Memorandum of Understanding (MOU) with at least 15 states on coordinating information sharing and enforcement Memorandum of Understanding (MOU) with IRS (which itself has information sharing agreements with 37 states) Targeted industries where substantial misclassification problems have been identified New Labor Secretary has vowed to make this a priority FLSA suits up 5% since 2012 and up 438% since
12 Independent Contractor or Employee? Different Laws Use Different Tests DOL Economic Reality Test (FLSA) o Wage and Hour Common Law Test o NLRA & ERISA IRS Three-Factor Test State Law Tests o A/B test o ABC o Common Law 12
13 DOL Economic Reality Test The economic reality test focuses on the degree of control exercised by the employer as an essential factor in determining whether an employer-employee relationship exists No single factor controls 13
14 Factors Include: The nature and degree of principal s control over alleged contractor as to the manner in which work is to be performed; The alleged contractor's opportunity for profit or loss depending on his managerial skill; The amount of the alleged contractor's investment in equipment or materials required for his task, or his employment of workers; Skill and initiative required in performing the job; Degree of permanency and duration of the working relationship; The extent to which the services rendered are an integral part of the principal's business; 14
15 DOL Economic Realities Test (con't.) According to the DOL, the following factors are immaterial in determining whether there is an employment relationship: The absence of a formal employment agreement Whether an alleged independent contractor is licensed by state/local government DOL also notes that the Supreme Court has held that time or mode of pay does not control the determination of employee status (Wage and Hour Fact Sheet #13) 15
16 Common Law Test (NLRA and ERISA) Definition of Employee Principal s right to control the manner and means by which the work is accomplished Key Factor Other Factors to consider Skill required; Source of the instrumentalities and tools; Location of the work; Duration of the relationship; Right of hiring party to assign additional projects to hired party; Extent of hired party s discretion over when and how long to work; Method of payment; Hired party s role in hiring and paying assistants; Is work part of hiring party s regular business; Is hired party in business? Provision of employee benefits; Tax treatment of hired party 16
17 NLRA Common Law Test: Northwestern University Football Employer bears the burden of justifying denial of employee status Under common law test, scholarship players are employees Common law definition of employee: a person who performs services for another under a contract of hire, subject to the other s control or right of control, and in return for payment. The tender is a contract of employment Players under strict and exacting control of the University (via the coaching staff) à threat of cancellation of scholarship Players compensated through scholarship in exchange for athletic services ($76K / year in scholarship; football team grossed $235 million in 9 years) 17
18 Employee Benefits Issues The common law test noted previously sometimes is used in the context of determining eligibility for participation in various employee benefit plans Health insurance / ACA considerations 401(k) / retirement plans Stock / equity award programs 18
19 IRS Test Modified version of Common Law Test, considers the work being performed and the business context in which it is performed Behavioral Control Financial Control Relationship of the Parties 19
20 IRS Test - Behavioral Control Whether a business directs or controls how work is done. The more influence the employer has in the following, the more likely the worker is an employee and not an independent contractor: Instruction type, degree of instruction, and evaluations systems Training 20
21 IRS Test - Financial Control Whether a business directs or controls the financial or economic aspects of the worker s job. The following factors are examined: Significant investment; Unreimbursed expenses; Opportunity for profit or loss; Services available to the market or other businesses; and Method of payment 21
22 IRS Test - Type of Relationship How do all of the parties perceive their working relationship? The following factors are considered: Written contracts; Employee benefits; Permanency of the relationship; and Services provided as key activity of the business 22
23 State Tests AB v. ABC AB Test A. Show that worker is free from the company s control and direction in performing the service, both under a contract and in fact B. Show that worker is customarily engaged in an independent trade, occupation, profession of the same type à very difficult to meet this element 23
24 State Tests AB v. ABC ABC Test A. Show that worker is free from the company s control and direction in performing the service, both under a contract and in fact B. Show that worker is customarily engaged in an independent trade, occupation, profession of the same type C. Show that service provided by worker is outside the employer s usual course of business or is performed outside all of employer s places of business -What does employer s place of business mean? 24
25 Hargrove v. Sleepy s LLC Delivery truck drivers claim they are misclassified as ICs and have been denied benefits and protections of ERISA, FMLA, NJ Wage Payment Law and NJ Wage and Hour Law District Court applied the 12-factor right to control test and held the drivers were ICs Drivers claim a hybrid test that is used for NJLAD claims (blending right to control and economic realities tests ) should be applied or the ABC test used for NJ Unemployment Comp cases Third Circuit noted that NJ courts have not yet determined which test to apply to claims under the NJ Wage Payment Law or the NJ Wage and Hour Law and certified this question to the NJ Supreme Court Case was argued March 17,
26 In re FedEx Ground Common Law Test Independent Contractors Alabama Arizona Arkansas California Florida Georgia Indiana Kansas Kentucky Louisiana Maryland Minnesota New Hampshire New Jersey New York North Carolina Ohio Oregon Pennsylvania Rhode Island South Carolina Tennessee Texas Utah West Virginia Wisconsin ABC Test Employees Indiana Massachusetts Nevada 26
27 Overall Considerations Why does company desire to classify individual as independent contractor? Who made decision to classify as independent contractor? Is classification consistent throughout the company? Was this decision thoughtfully made? Does business engage independent contractors in different states? Does the classification of contractors satisfy the applicable test in each state Analyze under economic realities, common law, AB, ABC, etc. tests Is individual subject to company s right to control the manner and means of performing the work? Does individual perform work with little or no supervision? Is individual in business for him/herself or is s/he economically dependent on someone else? 27
28 Overall Considerations (con't.) Financial Control Are expenses reimbursed? Whose equipment, materials, and/or facilities are being used? What is the fee arrangement? By the job? Upon completion of work? Hourly? Are documents consistent with contractor relationship? Are handbook and employment policies applicable to contractors? Is contractor subject to company rules? Is contractor required to sign a form agreement with no negotiation? Language used in documents sound more like employment than contractor relationship Non-Compete Agreement Concerns May be inconsistent with independent contractor status Is non-compete agreement needed? If so, should be very narrowly drafted; not complete prohibition 28
29 Overall Considerations (con't.) Does contractor do the same job/task as company employees? Is contractor working side-by-side with employee doing same task? What is different about the contractor? Is contractor s work an integral part of the company s business? Is contractor required to participate in company training? Does contractor have access to company , information systems, intranet? Does contractor have company address? Is contractor included on company-wide communications? Does contractor have company ID? How is s/he identified on ID? How does company review contractor s work? Do company supervisors discipline contractors? Does contractor have the right to quit or is s/he subjected to a contractual term? 29
30 Recap of Example Sam the Salesman 30
31 Pre-Emptive Action Items Audit company to determine whether there have been any employee misclassifications Revise policies, practices and employee benefits programs to achieve compliance Prepare and review independent contractor agreements, make necessary revisions Consult with counsel 31
32 DISCLAIMER The content of this webinar and the presentation materials have been prepared by Saul Ewing for information purposes only. The provision and receipt of the information in this webinar and the presentation materials should not be considered legal advice, does not create a lawyer-client relationship, and should not be acted on without seeking professional counsel who have been informed of the specific facts. Should you wish to contact a presenter to obtain more information regarding your company s particular circumstances, it may be necessary to enter into an attorney/ client relationship. 32
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