This is an except from the California Employer Daily Newsletter. It is just as applicable to Nevada.
These days, organizations frequently try to increase their workforce flexibility and decrease their benefit costs by hiring independent contractors to do required work.
All well and good … unless a court later determines that while you’re calling such workers independent, you’re really treating them as employees. In that case, and as names as famous as Microsoft have learned the hard way, penalties can be severe.
Often the issue revolves around how much control employers exercise over these workers’ job activities. The more control, the more likely the worker is actually an employee.
Consider this recent case involving cab drivers in Oakland:
Threatened with unionization of his drivers, the cab company owner contended that they were independent contractors and, thus not a collective bargaining entity, because:
• They paid a fixed rental fee for the cabs.
• They didn’t have to account for fees or tips.
• They had no set work hours or minimum work requirements.
• They received no benefits and no tax or social security was withheld from pay.
• Lease agreements openly stated that the drivers were independent contractors.
Independent contractors, right? Not so fast. The court held that while all the above was true, the drivers also suffered a “lack of entrepreneurial freedom” (i.e., the chance to make money on their own). The evidence:
• Drivers could only use cabs to respond to the cab company’s dispatches.
• They were prohibited from distributing private business cards and could not accept calls for service on their cell phones.
• They had to comply with company policy on how they drove and dressed, and they were subject to company discipline.
• They had to carry ads in their cabs that generated revenue for the company, but not for the drivers.
• Drivers were required to take more training than was legally mandated.
Taken together, those facts indicated that the company had a significant amount of control. This led the court to conclude that the cabbies did not have entrepreneurial freedom. And that, said the court, meant they were employees.
What the DOL Says
The U.S. Department of Labor (DOL) states that, under the Fair Labor Standards Act (FLSA), the employer-employee relationship is tested by “economic reality” rather than “technical concepts.” So just words in a leasing agreement or a “little bit of independence” isn’t enough to classify someone as an independent contractor.
Furthermore, the U.S. Supreme Court has, on a number of occasions, indicated that there is no single test for determining whether an individual is an independent contractor under the FLSA. It’s instead the total activity or situation that defines a worker’s status. Besides the control and entrepreneurial freedom issues mentioned above, courts consider:
• The extent to which the services rendered are part of the principal’s business
• The permanency of the relationship
• The amount of the alleged contractor’s investment in facilities and equipment
• The amount of initiative, judgment, or foresight required
• The degree of independent business organization and operation
Bottom line on all of this: Before you seek the advantages of calling your workers independent contractors, consider their total situation carefully. And remember, it’s not what you call them that may count in the end.
