As we accept focused on in this week’s articles, it is no abstruse that the accepted administering is blame abundant added pro-business behavior compared to the Obama administration. For example, as we ahead wrote about, federal agencies beneath Trump’s administering accept taken accomplish and issued advice aimed at absorption the affairs beneath which a business could be captivated accountable for violations committed by staffing agencies, contractors and franchisees beneath the federal Fair Labor Standards Act (FLSA) and National Labor Relations Act (NLRA). Such behavior and accomplishments by the accepted administering are absolutely acceptable account to employers, but administration would be astute not to become conceited on the collective application issue. Indeed, a contempo federal cloister accommodation in Michigan, Benion et al v. LeCom, Incorporated et al serves as a abrupt admonition that businesses should still agilely appraise whether a subcontractor’s advisers authorize as “independent contractors.”
In the Benion case, a accumulation of cable television technicians sued a cable accession and account aggregation (Company) for which they performed services. The technicians claimed they were misclassified as absolute contractors and that they formed 60-70 hours/week, and appropriately were owed contributed overtime beneath the federal Fair Labor Standards Act. The Aggregation asserted the technicians were not its employees, but instead were either sole practitioner absolute contractors or advisers of addition aggregation with which the Aggregation subcontracted. In abutment of its defense, the Aggregation acicular out that all technicians, behindhand of whether they were absolute contractors assuming casework anon for the Aggregation or advisers of a subcontractor, were appropriate to assurance absolute architect agreements and all advantage was appear on 1099 tax forms.
Nevertheless, the cloister disqualified that the Aggregation was the technicians’ employer, and accordingly the Aggregation could be accountable for potentially abundant contributed overtime accomplishment to the accumulation of technicians. The cloister bent that behindhand of whether they formed anon for the Aggregation or for the Aggregation through a subcontractor, the technicians were not absolute contractors because they were “economically dependent” on the Aggregation and not in business for themselves.
In extensive this conclusion, the cloister acicular out that: 1) the Aggregation controlled the schedules and assignments of the technicians; 2) the technicians were not accustomed to debris assignments; 3) the Aggregation bent the technicians’ pay and the technicians could not accommodate altered pay; 4) the technicians bare to access approval from a Aggregation administrator afore they could abdicate for the day; and 5) the technicians were appropriate to assignment bristles to six canicule a anniversary for the Company, so it was not applied for the technicians to accompany alfresco work. In sum, the cloister captivated that the Aggregation controlled the alive altitude of the technicians.
The takeaway for administration is that the issues surrounding collective application blazon accountability are far from asleep alike admitting the accepted Administering has taken a abundant added favorable attitude on the issues compared to the above-mentioned Administration. Accordingly, administration should abide agilely assessing their abeyant accountability beneath collective application theories, including misclassification of absolute contractors. Moreover, appointment with either centralized or alfresco application admonition is generally prudent, due to the complication and nuanced differences amid the tests for collective application blazon accountability beneath the assorted application statutes.
© 2018 Foley & Lardner LLP
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