Are Independent Contractor Classifications Becoming “Safer”? In a Word – No.

Safer

As we will describe in this and its companion article, if you are an employer viewing such classifications optimistically in light of some recent legal developments, you should do so fully aware of the attendant perils.

One might be excused for thinking (from an employer-biased point of view) that the independent contractor minefield might be settling down in light of the current sociopolitical and legal climate, as has occurred in several other transitioning areas of law, like labor relations and the enforcement of individual arbitration agreements to undermine class action litigation. Indeed, the Trump-era Department of Labor swiftly addressed what it viewed as improper focus and attacks on independent contractor classifications by withdrawing last year the Obama administration’s guidance on the topic.

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Notwithstanding Trump’s Efforts to Narrow Joint Employment Liability, Businesses Need to Remain Vigilant When Using “Independent Contractors”

Independent

As we have focused on in this week’s articles, it is no secret that the current administration is pushing much more pro-business policies compared to the Obama administration. For example, as we previously wrote about, federal agencies under Trump’s administration have taken steps and issued guidance aimed at narrowing the circumstances under which a business could be held liable for violations committed by staffing agencies, contractors and franchisees under the federal Fair Labor Standards Act (FLSA) and National Labor Relations Act (NLRA). Such policies and actions by the current administration are surely welcome news to employers, but employers would be wise not to become complacent on the joint employment issue. Indeed, a recent federal court decision in Michigan, Benion et al v. LeCom, Incorporated et al  serves as a stark reminder that businesses should still diligently assess whether a subcontractor’s employees qualify as “independent contractors.”

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Recent OFCCP Activity Signals Greater Transparency and Collaboration for Federal Contractors

Safer

In response to town hall meetings held late last year, the OFCCP has taken a number of actions geared toward addressing some of the contractor concerns discussed during those meetings. In particular, several of the directives and other publications issued by the OFCCP in recent months signal the OFCCP’s intent to provide greater transparency with respect to its auditing and enforcement efforts and reflect a more collaborative mindset than contractors have seen during the past decade.

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Is Being Overweight an Impairment?

overweight

According to the Centers for Disease Control and Prevention (CDC), approximately 40 percent of U.S. adults are obese. The CDC uses the Body Mass Index (BMI) as the benchmark for obesity. BMI is a calculation based on height, weight and age. A BMI of 30 or more, applying the CDC standards, constitutes obesity. The question arises as to whether those 40 percent of us who have a BMI of 30 or more have a disability under the ADA and state law and, if so, how should employers treat employees who are obese.

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Antitrust Scrutiny of No-Poaching Agreements Continues to Pick Up Steam

poaching

To most people, “poaching” is a bad thing, connoting a mix of elephant hunting and mediocre eggs. But in labor and employment—where “poaching” means recruiting away another employer’s talent—antitrust regulators, legislators, and class action attorneys have increasingly made clear that companies should engage in poaching, or else they will face potentially serious consequences under the antitrust laws.

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