The DOL’s just-issued final rule on employee vs. independent contractor classifications under the FLSA seems likely to be reversed. On January 20, the White House issued a memorandum to the heads of all executive departments and agencies ordering them to halt all non-emergency rulemaking and regulatory activity issued under the previous administration pending review by
Businesses engaging independent contractors have new guidance from the Department of Labor (DOL) for determining whether an individual is an employee or independent contractor, but the guidance may never take effect. On January 6, 2021, the DOL issued a final rule for determining whether an individual is an employee or independent contractor. The rule focuses on whether workers are economically dependent on another business–making them more likely to be an employee of that business, and entitled to the minimum wage and overtime under the Fair Labor Standards Act (FLSA)–or are economically dependent upon themselves, making them true independent contractors.
Continue Reading DOL Announces Final Rule for FLSA Worker Classification Focused on Economic Dependence-But Its Future is Uncertain
As predicted, on Friday, California Governor Newsom signed AB 2257 into law. The most significant changes are expanding the exemptions to AB 5’s coverage, that is, widening the range of occupations that will be held to an earlier standard for determining employment status. The new law takes effect immediately. For our coverage of AB 2257,…
A potential amendment to California’s AB 5 law is sitting on Governor Newsom’s desk. If enacted, the amendment will allow certain professions to be classified as independent contractors rather than employees, notwithstanding AB 5’s presumption of employment status. On August 31, the California legislature sent AB 2257 to Governor Newsom for his review and signature. Supporters of the bill expect Newsom to sign it into law next month, especially given AB 5’s perceived negative impact on the “gig” economy during the pandemic. If signed by the governor, the law will take effect immediately.
By way of brief reminder, AB 5 established a 3-part test, known as the “ABC” test, that is used to determine if workers are employees or independent contractors for purposes of the Labor Code, the Unemployment Insurance Code, and the wage orders of the Industrial Welfare Commission. Under the ABC test, a person providing labor or services for remuneration is considered an employee rather than an independent contractor unless the hiring entity demonstrates that the person is free from the control and direction of the hiring entity in connection with the performance of the work, the person performs work that is outside the usual course of the hiring entity’s business, and the person is customarily engaged in an independently established trade, occupation, or business. This broad test places most workers in the employee classification. AB 5, however, enumerated a few limited exemptions for specified occupations and business relationships from the application of the ABC test, providing that the exempt relationships are governed by the pre-AB 5 multi-factor test set out in S. G. Borello & Sons, Inc. v. Department of Industrial Relations. (For more detail on AB 5, click here.)
AB 2257 will modify some of the current exceptions to AB 5, and create new exceptions to AB 5’s presumption that workers are employees. A close read of the bill’s text is necessary given the proposed amendments’ nuances and sometimes conflicting detail. We outline below some of the major changes contemplated by AB 2257, but if your business potentially falls into one of the enumerated exceptions, we strongly recommend consulting with employment counsel given the complexities involved.
If enacted into law, AB 2257 will allow the following professionals to be classified as independent contractors in California if they satisfy the Borello standard.
Employees are the backbone of any supply chain operator. As such, upholding fundamental labor standards and protecting worker rights is a complex undertaking. Further, COVID-19 has introduced additional complexities regarding employee safety and remote work. The following are some considerations to help employers navigate the global framework of ever-evolving laws that touch the supply chain.
One of the major priorities for an employer in the supply chain industry is to avoid and prevent forced labor. Globally, millions are thought to be in trapped in forced labor. Many of these victims are linked to the supply chains of the international businesses supplying our goods and services. According to the Walk Free Foundation’s Global Slavery Index, published with input from the United Nations’ International Labor Organization and the International Organization for Migration (IOM), as of 2016, about 40.3 million men, women and children were trapped in modern slavery, including 24.9 million people who were victims of forced labor in global supply chains. Slavery can exist in all stages of the supply chain, from the picking of raw materials such as cocoa or cotton, to manufacturing goods such as mobile phones or garments, and at later stages of shipping and delivery to consumers.
To combat this human rights issue, several governments, on the global and U.S. federal and state levels, have passed laws to prevent human trafficking and require companies to ensure that they are not using forced labor:
- In the United States, the Trafficking Victims Protection Act makes human trafficking a federal crime, allows victims to sue traffickers; expands the Racketeering Influenced Corrupt Organization (RICO) Act’s list of crimes to include human trafficking, provides deportation protections for victims and their families, requires annual reports to Congress on efforts to prevent human trafficking, requires the government to notify all applicants for work and education visas about workers’ rights in the US and screen all unaccompanied immigrant children. Section 307 of the Tariff Act of 1930 prohibits the importation of goods mined, produced or manufactured, wholly or in part, in any foreign country by forced labor, including convict labor, forced child labor and indentured labor. Regulations promulgated by Customs and Border Protection (CBP) allow for issuing withhold release orders, requiring detention of goods at ports of entry when CBP agents reasonably believe that an importer is attempting to enter goods made with forced labor.
- Further, California enacted the California Transparency in Supply Chains Act of 2010, under which companies with over $100 million in gross sales who do business in California must disclose on their websites any efforts taken to eradicate human trafficking from their supply chains.
The 2020 presidential race is well underway in the U.S. Labor policy has been and will continue to be a key talking point for Democratic candidates and President Donald Trump moving into the general election.
In part one of this two-part article, we examine the key labor policy proposals advanced by the leading Democratic contenders…
Companies can be more confident that liability under the National Labor Relations Act will not flow from the misclassification of its workforce alone, thanks to a recent NLRB decision. Baker McKenzie attorneys call this welcome news for companies, but say they still must look at workforce relationships and properly classify independent contractors.
In a much…
Companies with operations in California can exhale slightly, with the Ninth Circuit Court of Appeal and another California appellate court recently concluding, separately, that the rigid “ABC Test” established in Dynamex v. The Superior Court of Los Angeles County does not apply in the joint employer context.
Continue Reading Courts Confirm Martinez – Not Dynamex – Applies To Joint Employer Claims In California
Today California Governor Gavin Newsom signed a landmark bill making it more difficult for companies to engage independent contractors. (See our previous coverage HERE.) Assembly Bill 5 “will help reduce worker misclassification — workers being wrongly classified as ‘independent contractors’ rather than employees, which erodes basic worker protections like the minimum wage, paid sick days and health insurance benefits,” Newsom wrote in a statement.
Continue Reading The Controversial ABC Test From Dynamex Is Codified In Law — California’s Gig Economy Braces For Change
In a much anticipated decision, the National Labor Relations Board (the “Board”) recently ruled in Velo Express, Inc. and Jeannie Edge that misclassifying employees as independent contractors does not violate the National Labor Relations Act (the “Act”). …
Continue Reading A Resounding “No”: NLRB Nixes Argument that Misclassification Violates NLRA