November 2020 was a superb month for ride-sharing and app-based delivery companies and for President-Elect Biden, but was far less favorable to professional sports leagues, interpreting and translation companies, oilfield businesses, and the trucking industry. We comment below on the success enjoyed in a California voter referendum for selected gig economy industries and the Biden Plan for addressing independent contractor misclassification. But unfavorable class action litigation experiences in other industries, including high-profile cases involving the NFL and the trucking industry, send a message to businesses using independent contractors that they need to enhance considerably compliance with federal and state independent contractor laws. …

President-elect Joe Biden’s campaign issued a comprehensive labor plan that seems to focus on empowering unions. But while the title of this campaign platform is “The Biden Plan for Strengthening Worker Organizing, Collective Bargaining and Unions,”[1] buried inside is a proposal addressing the misclassification of independent contractors that is internally inconsistent. Was it purposeful, reflecting the Biden campaign’s effort to court union voters, while maintaining a moderate view of the vital role played in our economy by the contingent workforce and businesses that play by the rules? Or is it just confusing? And what should businesses that use independent contractors do in the meantime?  We answer these questions below.…

In October, a diverse group of industries experienced adverse court rulings defending independent contractor classification class and collective action cases.  Two cases involved courts granting conditional certification of collective status: one involves Texas oil field workers; the other concerns Illinois cable technicians.  Both industries have been targeted by multiple IC misclassification class actions, as reported on a number of occasions in this blog. Shipt, the personal shopping service, was subjected to a new IC misclassification lawsuit, also in Illinois, which uses a test for independent contractor status that is very unfavorable to companies with an independent contractor business model. A pet sitting company in Missouri also fared poorly when an appellate court affirmed an administrative decision finding the pet sitters with whom it contracts are employees and not independent contractors.  A shipping company suffered the worst news last month for companies relying on the use of independent contractors when it lost its effort to bypass an administrative decision assessing it $1.8 million in unemployment tax liabilities for drivers found to be misclassified as independent contractors.…

The results are in. Voters in California don’t want their rideshare and app-based delivery services to change.  By an overwhelming majority, Proposition 22 was approved by California voters.  Essentially, that means that unlike all other businesses in California that have to meet the strict Dynamex ABC test or, if they are exempted from this test, the more rational multi-factor Borello test, companies in these gig economy industries now have a safe harbor, so long as they provide the benefits set forth in Prop 22 to their independent drivers and couriers.…

In response to the U.S. Department of Labor’s proposed regulation on independent contractor status under the Fair Labor Standards Act, over 1,500 individuals and organizations have already filed comments prior to the deadline at midnight tonight, October 26, 2020. Those submitting comments in support of the proposed rule include the U.S. Chamber of Commerce and the National Association of Manufacturers; those opposed include the AFL-CIO, the Teamsters Union, and the National Employment Law Project. The comment period was only 30 days in duration.  Regardless of the results of the upcoming election, it appears that the Labor Department will seek to issue a final rule before the end of this calendar year.  The publisher of this legal blog filed comments as well, which are reproduced in their entirety below.  They neither support nor oppose the proposed rule but rather suggest the Labor Department make clarifications and offer examples of some of the factors to be considered in determining if a worker or group of workers should be classified as independent contractors or rather employees under the FLSA. At the conclusion of this post, we provide an analysis and offer readers a key takeaway: regardless of the issuance of the final rule impacting this particular federal law (the FLSA), companies should take steps to enhance their compliance with all applicable federal and state IC laws and minimize their potential exposure to IC misclassification liability.…

Last month presented a clash between the enactment of a new version of the most restrictive ‎state law test in the nation for independent contractor status and the issuance of a proposed ‎federal regulation that would create one of the more lenient legal standards for IC status. The ‎state law, California Assembly Bill 2257 (AB2257) which Governor Newsom signed into law on ‎September 4, 2020, replaced Assembly Bill 5 (AB5), which had codified California’s version of ‎the so-called ABC test. Many commentators regard this ABC test, which changed decades of ‎settled law, as the death-knell for the overwhelming number of California independent contractor ‎relationships that were structured in a lawful manner, causing many freelancers to lose their work ‎opportunities with both gig economy and traditional businesses. Meanwhile, the U.S. Labor ‎Department issued a proposed regulation establishing a test for IC status under the Fair Labor ‎Standards Act that essentially preserves the legitimate nature of many independent contractor ‎relationships but did so in a manner that may insulate more businesses from misclassification ‎liabilitys. ‎…

Earlier today, the U.S. Labor Department issued a proposed regulation addressing the ‎classification criteria of workers as independent contractors or employees under the Fair Labor ‎Standards Act (FLSA). Unlike regulations with hard and fast rules, this proposed regulation is in ‎the nature of an administrative interpretation articulating the Labor Department’s view of the ‎law. It analyzes decades of court decisions and seeks to issue a uniform interpretation of those ‎cases for the courts to apply in the future. Yet at the same time, the proposed regulation includes ‎a 90-page preamble that acknowledges that the courts have, with few exceptions, uniformly ‎applied the test for independent contractor status under the FLSA. The proposed rule, therefore, ‎if issued in final form, would provide little guidance to the public or the courts. But it will shine ‎a brighter light on the issue of independent contractor misclassification. Companies would be ‎wise to enhance their independent contractor compliance, such as in the manner noted in the ‎‎“Takeaway” below.…

Last month’s legal news in the area of independent contractor misclassification and compliance was dominated by two key arbitration decisions by federal circuit courts: one that compelled arbitration of an IC misclassification lawsuit by drivers delivering restaurant food through the GrubHub platform, and the other where a motion to compel arbitration was denied in an IC misclassification lawsuit by drivers making last-mile deliveries of packages for Amazon.com. We commented on the Amazon case in a separate blog post last month and in a Law360 article quoting the publisher of this blog, where we noted that most companies should not be concerned about the Amazon decision because the arbitration clause used by Amazon appeared to be rather unique. Two of the other cases we report on below are meaningful for businesses in two industry sectors: blogging and pharmacies.…

Many independent contractors complained of dire consequences after Assembly Bill 5 (AB5) became effective in California on January 1, 2020. Following intense lobbying and public relations campaigns, independent contractors in 15 industries have now been added to AB5’s list of freelancers who are eligible for an exemption from California’s extraordinarily onerous version of the so-called “ABC” test for independent contractor status. The new version of AB5 is called Assembly Bill 2257 (AB2257). It was signed into law by the Governor of California last Friday, September 4, 2020 and replaces AB5. Except for those fortunate industries and service providers now eligible for exemption from the ABC test, the new law only tweaks AB5 and is essentially unchanged in any meaningful way for the overwhelming number of companies and freelancers doing business in California. But as noted below, there are strategies that can be used by many companies in an effort to comply with AB2257.…

Two recent federal appellate court decisions struck down Amazon’s arbitration clause ‎in its agreements with workers who deliver its packages to Amazon customers. Those ‎two rulings have created great concern for businesses in the transportation industry. ‎However, it is important to understand that the contractual language at issue in these ‎two cases is unique to Amazon. In most instances, arbitration agreements with class ‎action waivers can be enforceable, even when applied to workers who deliver or ‎transport products in interstate commerce. This blog post provides tips for companies in ‎all industries (including the transportation, delivery, and logistics sectors) how to more ‎effectively draft arbitration provisions with class and collective action waivers in their ‎independent contractor agreements.…