Delaware Employment Law Blog

Independent Contractor Update:  Earlier this year, legislation was introduced that would prevent employers from improperly classifying employees as "independent contractors" in order to avoid paying them overtime and benefits. The Employee Misclassification Prevention Act (H.R. 6111) hasn’t seen any activity since June, when it was referred to the House Ways and Means’ Subcommittee on Income Security and Family Support. (Readers may recall that this was the same time that the Delaware and Pennsylvania state legislatures were reviewing similar legislation). 

In light of the impending change in the White House and the pro-union legislative efforts that are sure to follow, it may be time to take a second look at the Employee Misclassification Prevention Act. (Especially since President-elect Barrack Obama was one of two Senators to introduce S. 2044, called the “Independent Contractor Proper Classification Act of 2007,” which would repeal section 530 safe harbor for classifying workers as independent contractors.)

Aside from clarifying that misclassifications are a prohibited act under the FLSA, the proposed bill would also increase penalties under appropriate circumstances and require the U.S. Department of Labor (DOL), and the states to work together to better detect misclassification. In addition, the bill would: (1) require employers to designate on their employee's records whether they are an "employee" or "independent contractor;" (2) require employers to notify workers of that classification and their right to challenge it; and (3) require state unemployment insurance agencies to audit employers to identify employers who are misclassifying employees.

The DOL and Internal Revenue Service (IRS) would also be required to share information on cases where employers misclassify workers. In addition, the proposed bill would mandate that the DOL perform targeted audits focusing on employers in industries that frequently misclassify employees. Presumably, the construction industry would be a prime target, in light of the fact that the industry was the focus of both Delaware and Pennsylvania’s proposed laws, both of which shared the same name, the Construction Industry Independent Contractor Act.

According to the latest comprehensive study by the IRS, 15% of employers in the U.S. were misclassifying employees as independent contractors. 3.4 million employees were affected. The IRS’s findings are similar to those of the May 8, 2007, report by the Government Accountability Office. The report, titled “Employee Misclassification -- Improved Outreach Could Help Ensure Proper Worker Classification,” concludes that there were 10.3 million independent contractors in 2005. That number grew from 6.7% of the total workforce in 1995 to 7.4% in 2005.

And what’s so bad about misclassification? For one, misclassification costs the Treasury billions in lost revenue. Additionally, improper misclassification artificially lowers costs for those businesses that engage in the practice. In turn, the businesses that follow the rules are put at a competitive disadvantage. But the real focus of the proponents of the legislation has been the potential harm to the employees who do not have access to the benefits and protections to which they are entitled under the law.

Misclassification violates the Fair Labor Standards Act (FLSA), because it enables employers to avoid meeting the mandatory minimum wage and overtime requirements. And, just as they are exempted from the requirements of the FLSA, independent contractors also are not protected by worker’s compensation and discrimination laws and are not entitled to unemployment insurance.

The employers’ perspective is equally compelling. For a variety of reasons, such as fluctuating work demands and seasonality, many businesses cannot afford to maintain a workforce comprised exclusively of year-round employees. Independent contractors provide a solution to the demand for personnel with specialized skills and knowledge that may be required for short-term projects. Additionally, the ability to set one’s own schedule is seen by many as an attractive benefit.

Employers should be aware of several employment and labor law initiatives in the state and federal legislatures.  Congress currently is considering the Employee Free Choice Act (EFCA), and the RESPECT Act, for starters. And the Construction Industry Independent Contractor Act, which was quietly passed by the Delaware and Pennsylvania Houses poses serious risks to employers in the construction trade.

Employee Free Choice Act

The EFCA could be a silent killer.  It has managed to keep a very low profile during its months-long visit to Capital Hill.  In short, it would eliminate the secret-ballot vote and would require employers to recognize a labor union without an election.  The long-unchanged law currently requires employers to choose between recognizing the union and a secret-ballot election if more than 50% of employees in a bargaining unit sign a union authorization card. 

If passed, the EFCA would change this procedure entirely.  Employers would have to recognize the labor union immediately if more than half of the workforce signs union cards.  And, to make it worse, there's not much an employer can do about it.  Union campaigns can be fully underway before the employer even learns about it.  And interference in card-gathering activities would subject the employer to civil penalties.

RESPECT Act

The unfortunately named RESPECT Act poses another labor-related threat to employers in the construction industry.  The "Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers Act" would amend the National Labor Relations Act (NLRA) by redefining the definition of "supervisor."  If passed, the RESPECT Act would eliminate the current requirement to obtain supervisor-classification that the employee must posses the authority to assign work to others and to responsibly direct employees.  Instead, the definition of supervisor would be much more difficult to satisfy.  The proposed definition would require the employee to exercise authority over employees for a majority of his or her working time.

There is a giant leap from possessing authority and exercising that authority for a majority of working time. 

We've posted about the state-level initiatives that would criminalize misclassification of employees as independent contractors that have passed the House both in Delaware and in Pennsylvania.  It may be that the definition of "independent contractor" becomes key in avoiding a criminal conviction.  The EEOC provides a non-exclusive list of 17 factors, as well as examples of the factors in use, for use in making that determination.

Helpful Resources

Kris Dunn at The HR Capitalist has a persuasive post about the Employee Free Choice Act and the potential catastrophe it could cause if passed.

The American Nurses Association, which is very pro-RESPECT Act, has a current list of the legislators who support the bill--check to see if your state's legislator is one of the them.  If he or she is on the list, put pen to paper and tell your elected officials what you and the entire industry stand to lose if the RESPECT Act is passed.

Sheldon Sandler reported earlier this week about a law passed by the Delaware House that would criminalize employment laws.  Pennsylvania has passed a law nearly identical to the Delaware bill.  In case you missed Sheldon's post, here's a recap that includes the details of the laws of both states.

Like Delaware, Pennsylvania's version of the Construction Industry Independent Contractor Act proposes to penalizes employers in the commercial or residential building construction industry for intentionally evading certain state employment laws, such as the Minimum Wage Act, the Wage Payment and Collection Law, the Unemployment Compensation Law, and the Workers’ Compensation Act.

The law sanctions both intentional and negligent misclassifications of workers. An employer that intentionally misclassifies an employee will be charged with a third-degree felony and could face a fine of up to $15,000, imprisonment of up to three and a half years, or both, for a first offense.  Subsequent convictions could result in fines of up to $30,000,  imprisonment of up to seven years, or both.

Negligent misclassification carries penalties of up to $1,000 per offense, and possible administrative fines.

The Attorney General may also issue a stop-work order, which requires the employer to cease all business operations until Pennsylvania’s Secretary of Labor and Industry lifts the order or the employee is properly ­classified. In addition, the employer may be subject to a civil action for damages brought by an employee, or the employee’s union, claiming improper classification.

The Act also  includes an anti-retaliation provision. 

If the bill succeeds with the Pennsylvania Senate and is signed (as is expected) by Governor Rendell, the legislation could become effective as early as January 1, 2009.

Delaware employers who've not heard of "The Construction Industry Independent Contractor Act" should pay close attention to this post.  Every business with employees working in Delaware should be aware of this bill, HB 468, introduced yesterday in the Delaware General Assembly, and the many repercussions it could cause. 

Proposed Bill Would Target Delaware Employers in the Construction Industry

"The Construction Industry Independent Contractors Act,” apparently is on the fast track for approval at the state legislative level.  Although its name indicates that it reaches construction-industry employers, the proposed bill has potential implications for all employers.

In short, the bill purports to penalize employers who improperly classify construction employees as independent contractors.

In essence, it provides that all construction industry workers are “deemed to be” employees unless:

1. the workers are “free from control or direction;”
2. the work is “outside” the employer’s usual business; and
3. the person is “customarily engaged in an independently established trade, occupation, profession, or business."

Employers Could Face Jail Time for Misclassification

An employer who fails to “properly classify” a person as an employee, even unwittingly, is subject to fines and imprisonment for up to 90 days. If done knowingly, the fine can be as much as $10,000 and the prison term as much as 6 months. In addition, the Secretary of Labor can impose administrative penalties, debar the employer from state projects, and even require the employer to cease operations.  And as if those measures aren't enough, an individual who claims to be the victim of misclassification, or his or her union, can bring a civil action for damages, including a class action.

This draconian legislation, if enacted, would expose construction industry employers to financial ruin. Class action lawsuits are invited, and the language is constructed in such a way that virtually every person who works on a construction project would be viewed as an employee.

The Potential Consequences of the Independent Contractors Act

But why stop with construction employers? The same rationale would seem to be applicable generally to employers, so the next step would seem to be to expand the scope of the legislation to cover all employers. Interested businesses and business associations beware – this bill must be stopped!

The full text of the bill can be seen at the Delaware General Assembly website.