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2019 Employment Concerns in the Gig Economy

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Attorneys Jane Gleaves and Brendan Feheley presented various concerns related to the Gig Economy. They discussed topics such as the differences between an independent contractor or an employee, along with why this is important in our current economy. The seminar also covered the misclassification of employees as independent contractors and the effects of this. Finally, they offered a number of solutions for ways to avoid these issues.

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2019 Employment Concerns in the Gig Economy

  1. 1. Presented by Jane Gleaves + Brendan Feheley Employment Concerns in the GIG ECONOMY
  2. 2. Independent Contractor Employee OR
  3. 3. Why does it matter?
  4. 4. Misclassified employees lose workplace protections Right to join a union Face an increased tax burden Receive no overtime pay Ineligible for benefits
  5. 5. Companies can be forced to pay back in the form of: Unpaid overtime compensation Employee benefits Workers’ comp benefits Insurance premiums Social security Unemployment Tax obligations Liquidated damages
  6. 6. 11.8%
  7. 7. 40%
  8. 8. 33%
  9. 9. How can you tell?
  10. 10. Generally, if the employer controls the services the worker performs, then the worker is an employee, not an independent contractor Internal Revenue Service Test
  11. 11. Internal Revenue Service Test Behavioral Financial Type of Relationship
  12. 12. Establishes whether the worker is economically dependent on the supposed employer The Economic Reality Test
  13. 13. 7 Significant FACTORS 1 Extent to which the services rendered are an integral part of the principal’s business 2 Permanency of the relationship 3 Amount of the alleged contractor’s investment in facilities + equipment 4 Nature + degree of control by the principal 5 Alleged contractor’s opportunities for profit + loss 6 Amount of initiative, judgment, or foresight in open market competition 7 Degree of independent business organization + operation
  14. 14. Ohio’s Test – Factors of Control Details + Quality of Work Hours Worked Materials, Tools, Personnel Length of Employment Type of Business Method of Payment
  15. 15. Courts look at the of the relationship REALITY
  16. 16. NOT an Excuse Giving a 1099 Employee Agrees Working Remotely Common Industry Practice
  17. 17. BILL 5 ASSEMBLY
  18. 18. BILL 5 ASSEMBLY On September 18, 2019, California Governor signed into law A.B. 5, codifying the “ABC test” adopted in the California Supreme Court decision – ensuring most California workers should appropriately be classified as employees
  19. 19. Independent Contractor TEST Free from control + direction of hiring entity in connection with performance of work, both under contract for the performance of the work and in fact Performs work outside the usual course of the hiring entity’s business Customarily engaged in an independently established trade, occupation or business of the same nature of work performed
  20. 20. Who Would Pass This TEST?
  21. 21. Recent CASES
  22. 22. Class Action Settlement by Baked Goods Company $9 MILLION
  23. 23. DIRECTV Installation Provider Sued by Technicians in IC Misclassification Class Action
  24. 24. Dental Care Company Sued for IC Misclassification by Dentist
  25. 25. New Jersey Law Firm Prevailed Against Claim of One of Its Paralegals
  26. 26. Off-Duty Police Officers Moonlighting as Security Guards
  27. 27. Independent Contractor Employee? OR
  28. 28. Oilfield Consultants
  29. 29. Independent Contractor Employee? OR
  30. 30. Logistics Company
  31. 31. Independent Contractor Employee? OR
  32. 32. Service Providers for a Virtual Marketplace Company
  33. 33. Independent Contractor Employee? OR
  34. 34. Radio Talk Show Hosts
  35. 35. Independent Contractor Employee? OR
  36. 36. My Independent Contractors are REALLY Independent…
  37. 37. So Misclassification is my only issue, RIGHT?
  38. 38. “The employer will be liable for harassment by non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.”
  39. 39. Sexual Harassment PROTECTIONS?
  40. 40. Negligence CASES
  41. 41. Lawsuit Against Lyft Related to Sexual Assaults by Drivers
  42. 42. Lawsuit Against DoorDash for Negligent Hiring
  43. 43. Amazon Delivery Driver CLAIMS
  44. 44. Amazon directs, through an app, the order of the deliveries and the route to each destination Amazon software tracks drivers’ progress Dispatcher in an Amazon warehouse can call drivers if they fall behind schedule Amazon requires that 999 out of 1,000 deliveries arrive on time
  45. 45. Independent Contractor Employee? OR
  46. 46. 60 ACCIDENTS since June 2015 involving Amazon delivery contractors that resulted in serious injuries, including 10 deaths
  47. 47. Branding ISSUES
  48. 48. Working with EMPLOYEES
  49. 49. Interacting with CLIENTS
  50. 50. Non-Compete ISSUES
  51. 51. 3 POSSIBLE SOLUTIONS Hire as Employees IC Contract Remedies Staffing Company
  52. 52. Hire as Employees
  53. 53. IC Contract Remedies
  54. 54. Staffing Company
  55. 55. Preparing for the 2020 DOL Overtime Regulations: A Strategy Session Wednesday, November 13 2:00 p.m. Wednesday, November 6 8:30 a.m.
  56. 56. Jane Gleaves Kegler Brown Hill + Ritter jgleaves@keglerbrown.com keglerbrown.com/gleaves 614-462-5484 Brendan Feheley Kegler Brown Hill + Ritter bfeheley@keglerbrown.com keglerbrown.com/brendanfeheley 614-462-5482

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