From the makers of the “Sunday of Summer,” we bring you . . . “Pre-Fall”! Yes, Labor Day came and went, PSLs are back, football season is upon us, and there’s a little bit more of a nip in the air each morning. Fall is all about transition, so in this edition we’re discussing the “new” new normal as more and more employers are requiring that their employees get back in the office, and, you guessed it, COVID-19 guidance. Before we get to that, let’s discuss some independent contractor considerations (especially since cooler weather means less time at the beach and more time for side hustles).
New Jersey Court Cracks Down on Employee Misclassification
We warned you that New Jersey was going to start cracking down on employee misclassification, and it looks like New Jersey courts are doing just that. In a recent opinion, the New Jersey Supreme Court applied the “ABC” test in deciding whether a contractor that hired workers on a job-by-job basis misclassified its workers as independent contractors. We all know our ABCs, but do you know the ABC test?
The ABC test looks at a few factors to determine worker classification: whether the individuals are under the direction and control of the employer, whether the work is outside of the usual course of business, and whether the individual is customarily engaged in an independently established trade, occupation, profession, or business. In this case, the Court held that the workers were independent contractors, even though they sometimes worked on different jobs for different companies (a factor that usually leans towards independent contractors).
Employers should be “Uber” careful about hiring workers who perform the same or similar services as the essential work of the business – it’s more and more likely they should be classified as employees. If you’re not sure what your workers are, the IRS recently published a nifty “Worker Classification 101” cheat sheet, which may help steer you in the right direction.
Freelancing Certainly Isn’t Free
In related news, if you’re a New York City employer with properly classified independent contractors, make sure you have a contract and actually pay them. The New York Appellate Division recently issued the very first appellate decision interpreting New York City’s Freelance Isn’t Free Act (“FIFA”), which was enacted back in 2016. Pursuant to FIFA, freelance workers must be given a written contract that includes the amount they are paid and when they are paid, otherwise you could be staring at damages coming in at three (or even four) times the value of the contract. The actual facts of this case are probably less important than the fact that a FIFA case was finally heard on appeal. FIFA is one of those lesser-known NYC employment laws that could really ding you if you’re not careful, and this decision is likely going to result in more freelancers filing claims (especially in the entertainment industry, which is what this case involved). Employers should get in front of this by cleaning up their contracts and understanding their payment and other legal obligations.
Revisiting EEOC COVID-19 Guidance, Returning to the Office, and Saying Goodbye to Masks
Feels like it was just yesterday that we had a COVID-19 best practices update, and here we are again with more! The pre-Fall, post-Labor Day transition is bringing way to new return-to-office mandates, with Wall Street banks opening their offices again and pushing their employees to stop WFH (we’re just assuming everyone knows this acronym by now . . . ).
It’s no doubt that more companies are calling employees back. So it’s a good time to revisit the EEOC’s recent guidance on employer best practices regarding COVID-19 vaccinations. According to the guidance, federal law doesn’t prohibit employers from requiring that all employees be vaccinated against COVID-19. However, be careful about running into discrimination-related issues (i.e., don’t think you can avoid making reasonable accommodations for employees with religious or medical exemptions, and you should probably chill out a bit with using testing as a screening tool). Employers must also be mindful of not asking employees about their family members’ medical information (i.e., if a family member is sick and could expose the employee if they’re unvaccinated), as that may violate the Genetic Information Nondiscrimination Act. The best practice if you want your employees to get vaccinated is to instead provide them with vaccination guidance and information.
We’re holding on to Summer as best we can over here. But enjoy your PSLs, re-runs of Gilmore Girls, football, or foliage (something for everyone – we’re equal opportunity bloggers over here)!
As always, if you’ve got questions – you know we’ve got answers.