The Expanding Definition of Employer

Transcription

1 The Expanding Definition of Employer Michael Sheehan Anne Pachciarek Tim Brennan May 19, 2015

2 Contact Information Michael Sheehan Partner DLA Piper Employment Anne Pachciarek Partner DLA Piper Employment Tim Brennan DLA Piper - Associate Employment Tim.Brennan@dlapiper.com

3 The Expanding Definition of Employer Historically, joint employment occurred when separate business entities simultaneously share control and supervision of a worker. Control and Supervision Control and Supervision

4 The Expanding Definition of Employer Now, the historical test of direct and actual control is being altered in the US. The Department of Labor, NLRB, and the EEOC now propose to find joint employment with any one of these factors: indirect control over working conditions; unexercised potential control over working conditions; or industrial realities suggest another entity essential to remedy 4

5 The Expanding Definition of Employer The Board should abandon its existing joint-employer standard because it undermines the fundamental policy of the Act to encourage stable and meaningful collective bargaining... The current standard also ignores Congress s intent that the term employer be construed broadly in light of economic realities and the Act s underlying goals, and has particularly inhibited meaningful bargaining with respect to the contingent workforce and other nontraditional employment arrangements. 5

6 The Expanding Definition of Employer joint employer if indirect control over working conditions, [or] the unexercised potential to control working conditions, or where industrial realities otherwise made it essential to meaningful bargaining. 6

7 The Expanding Definition of Employer the Board [should] adopt a new standard that takes account how the putative joint employers structured their commercial dealings with each other. 7

8 The Expanding Definition of Employer What Does This Look Like in The Real World? 8

9 The Expanding Definition of Employer What Does This Look Like in The Real World? In CNN America, Inc., the NLRB held that CNN was a joint employer of its subcontractor s employees. CNN s Washington bureau hired TVS (an outside company) to run the cameras in its studio; TVS provided video and audio technicians to run CNN s broadcast feed; CNN paid TVS on a cost-plus basis; and CNN supplied all equipment used by TVS technicians. 9

10 The Expanding Definition of Employer What Does This Look Like in The Real World? 10

11 The Expanding Definition of Employer What Does This Look Like in The Real World? In Guippone, the Second Circuit held a private equity owner could be an employer under the WARN Act. The operating company did not have its own board of directors or managers; PE firm and operating company shared common officers; The PE board participated in the decision to terminate operating company s employees; Most important is whether the PE firm in fact ordered layoffs. 11

12 The Expanding Definition of Employer Why is this important? Financial Exposure Public Image 12

13 What Does This Look Like in The Real World? Joint Employer Directly or Indirectly Setting employment policies Monitoring the number of hours worked Influencing discipline / promotions Setting pay rates and job classifications Dictating employment conditions e.g., work schedules, breaks, timekeeping Dictating recruitment and hiring practices Running payroll and benefits Training / supervising their employees Hyper-managing their efficiency / profitability Keeping records on their employees Ensuring consistency of service Protecting branding and advertising Providing high-level shared services Consulting with them about start-up issues Requiring reports re normal business issues Traditional Relationship

14 What to Do Next 1 Stay out of counter party s personnel decisions 2 Manage/supervise the counter party, not its employees 3 Avoid dictating their employment policies or practices 4 Don t become their HR Dept. (for records, benefits, or payroll) 5 Parent companies face the highest risks 14

15 Independent Contractors Motivation: 20%-40% labor cost savings flexibility no employment tax no overtime or minimum wage no payment for down time no benefits or Obamacare no workers compensation no unemployment contributions no discrimination statutes Start-Ups Drivers Branded Service / Installation Strippers 15

16 Independent Contractors Revenue Federal: $2.72 Billion/year in lost revenue State: $200+ Million/year (per state) This is a sample presentation title in footer MMM dd, yyyy 16

17 Independent Contractors Revenue Federal: $2.72 Billion/year in lost revenue State: $200+ Million/year (per state) This is a sample presentation title in footer MMM dd, yyyy 17

18 Independent Contractors Too many hunters: State unemployment tax dept. State workers comp agency Private plaintiffs (e.g., discrimination) State income tax Federal income tax Social Security Government investigations (e.g., state or federal dept. of labor) 18

19 Independent Contractors Too many hunters: State unemployment tax dept. State workers comp agency Private plaintiffs (e.g., discrimination) State income tax Federal income tax Social Security Government investigations (e.g., state or federal dept. of labor) 19

20 Independent Contractors Too many hunters: State unemployment tax dept. State workers comp agency Private plaintiffs (e.g., discrimination) State income tax Federal income tax Social Security Government investigations (e.g., state or federal dept. of labor) 20

21 Independent Contractors Too many hunters: State unemployment tax dept. State workers comp agency Private plaintiffs (e.g., discrimination) State income tax Federal income tax Social Security Government investigations (e.g., state or federal dept. of labor) $97M in unpaid stock benefits to misclassified workers 21

22 Independent Contractors Increased attention from federal and state regulators has led to a surge in misclassification lawsuits. $97M misclassifying freelancers $27M misclassifying drivers $11M misclassifying delivery carriers $6.5M misclassifying installers

23 Independent Contractors If it s legal in California 23

24 Independent Contractors If it s legal in California In Waddell & Reed, the California federal court approved broker-dealer s classification of registered representatives as ICs. The reps made their own business strategies and decisions. The reps worked where they wanted, could hire assistants, and were paid commissions only. Fact that registered representatives had to follow broker-dealer s SEC/FINRA rules doesn t make them employees. See also Arnold v. Mut. of Omaha Ins. Co., 202 Cal. App. 4 th 580 (Cal. Ct. App. 2011). 24

25 Independent Contractors But it s still all about the facts 25

26 Independent Contractors But it s still all about the facts In Farmers Insurance, the Iowa federal court held on motion to dismiss that Farmers could be employer under Title VII and ADEA. Insurance rep signed contract that he was not an employee. However, the court looked past the contract. Court rejected motion to dismiss because rep identified company employees who supervised him, assigned him projects and terminated him. 26

27 Using a Temp Agency 2 Questions: Will my contract protect me? Will the agency do it right? 27

28 Using a Temp Agency 1. Will my contract protect me? Provide: Agency is the lone employer Agency responsible for all hiring, training, wages, taxes, benefits, firing The company does not control how the IC does her/his job Agency insures and indemnifies company for all employment claims BUT, agreements only take you so far. 28

29 Using a Temp Agency 2. Will the agency do it right? Agency size, reputation Agency litigation history Online reviews of agency Sophistication of documents/operation 29

30 Misclassification: The Tests A-B-C Test A. The worker is free from the company s control and direction in performing the service B. The work done is outside the employer s usual course of business C. The worker is customarily engaged in an independent trade, occupation, profession, or business IRS Test Behavioral Control: Does the company control or have the right to control what the worker does and how the worker does it? Financial Control: Are the business aspects of the worker s job controlled by the payer? (e.g., how worker is paid, whether expenses are reimbursed, who provides tools) Type of Relationship: Are there contracts or employee benefits (e.g. pension plan, insurance, vacation pay)? Will the relationship continue and is the work performed a key aspect of the business? DOL Test 1) The extent to which the work performed is an integral part of the employer s business. 2) The worker s opportunities for profit or loss 3) The relative investments in facilities and equipment by the worker and the employer. 4) The worker s skill in performing the job and initiative required for success. 5) The permanency of the worker s relationship with the employer. 6) The nature and degree of control by the employer. 30

31 Misclassification: The Tests IRC Section 530 Safe Harbor Test Reasonable Basis for IC classification? Does the rest of the industry do it? Is company relying on an audit, court case or attorney? Has company treated all similar workers as ICs, as opposed to treating some workers as ICs and some similar workers as employees? Has company consistently reported income on Form 1099? 31

32 Misclassification: Control Test Generally an individual is an independent contractor if the client controls only the resultof the work, and not themeans and method by which the contractor accomplishes it. Means/Method Result

33 Best Practices: What To Avoid IC s on premises for extended periods of time ( permatemps ) IC s performing core functions of company Independent Contractors IC s in same positions and performing same work as employees IC s constitute more than 10% of workforce IC s don t have their own profit/loss margins 33

34 Best Practices: IC Agreements IF you take the risk of using IC s or temps, use an agreement: Require IC to be a business entity, and contract with that entity only The company is prohibited from controlling how the IC does her/his job Require indemnity from the entity for employment claims Use arbitration clauses to inhibit class or collective actions BUT, IC agreements only take you so far 34

35 Best Practices: Temp/IC Agreements Looks fine Well-drafted temp/ic agreements: 1. portray facial compliance with employment laws, 2. create some real protections. BUT But CAUTION: a look beyond the document can betray it as a mere façade. The FACTS behind the façade are what matter. 35

36 Practical Advice: Check Benefit Plans This Plan applies to employees only, and not to independent contractors. This Plan applies to only to individuals treated as Company employees for payroll tax purposes, regardless of whether a court or government agency determines them to be employees. 36

37 ACA AND INDEPENDENT CONTRACTORS

38 EMPLOYER MANDATE Employer mandate tax penalty for large employers that don t offer minimum essential coverage to full-time employees (and their dependents) applies to employers with more than 99 employees in 2015 Employers with employees have until 2016 to comply A large employer is subject to penalty if at least one full-time employee receives a subsidy for exchange coverage and: The employer fails to offer coverage to substantially all fulltime employees (and their dependents) (the no coverage penalty ); or Coverage is unaffordable (employee contribution must be less than 9.5% of income) or does not provide minimum value (the inadequate coverage penalty ) 38

39 EMPLOYER PENALTIES Penalty amounts No coverage penalty: $2,000 per year, per full-time employee in excess of 30 full-time employees (80 in 2015) Inadequate coverage penalty: $3,000 per year, per full-time employee for whom coverage is unaffordable or does not provide minimum value and who receives a subsidy to purchase coverage through an exchange Penalty amounts are indexed: $2,000 penalty is estimated to be $2,120 in 2015 and $3,000 penalty is estimated to be $3,180 in

40 DETERMINING FULL-TIME EMPLOYEES Who must be offered coverage determining full-time employees. The ACA defines full-time employees as those who work an average of 30 or more hours of service per week Independent contractors do not count as employees when determining whether an employer meets the minimum threshold as a large employer Independent contractors also are not counted as full-time employees who could trigger potential penalties The ACA incorporates the ERISA definition of employee as any individual employed by an employer Final regulations say that an employee means an individual who is an employee under the common-law standard 40

41 MISCLASSIFICATION ACA increases the potential adverse consequences to employers of misclassifying employees as independent contractors Misclassification may trigger assessment of ACA excise tax penalties 41

42 STAFFING AGENCIES WHO IS LIABLE FOR EMPLOYER MANDATE? Provisions on staffing agencies Temporary staffing firms generally will be the common law employer of workers they place on temporary assignment at client employers Other staffing firms and PEOs typically the client employer will be the common law employer Safe harbor method by which staffing firm or PEO can provide health benefits to workers on behalf of client employer No co-employer concept under employer mandate = Total Number of Full-time Equivalent Employees 42

43 CONCLUSIONS AND STEPS FOR EMPLOYERS Employee determination by IRS under ACA employer mandate will be evaluated on a case-by-case basis Need to analyze control over workers Review operational and financial realities to determine who is employer of all workers Review and revise client service agreements Assure overall compliance with ACA employer mandate 43

44 Contact Information Michael Sheehan Partner DLA Piper Employment Anne Pachciarek Partner DLA Piper Employment Tim Brennan Associate DLA Piper Employment Questions? This is a sample presentation title in footer MMM dd, yyyy 44