- The 7th U.S. Circuit Court of Appeals has vacated a lower court’s ruling that an Illinois housing authority's full-time handyman was an independent contractor and not an employee. (Simpkins v. DuPage Housing Authority, No. 17-2685 (7th Cir., June 20, 2018)).
- Anthony Simpkins worked for DuPage Housing Authority as a carpenter and handyman under an "independent contractor agreement." He was given a list of duties and the order in which the tasks needed to be completed, and worked for the employer full-time and exclusively. He repeatedly requested that his supervisors convert him to a regular employee, according to the court.
- After a car accident ended his relationship with the employer, he sued, alleging Fair Labor Standards Act and Family and Medical Leave Act violations. A district court granted summary judgment for the employer and Simpkins appealed. On appeal, the 7th Circuit reversed and remanded the case, noting that it presented an opportunity for a "long overdue and critical" clarification of the standards involved.
As employers increasingly rely on gig workers, HR will need to have a good understanding of exactly who is working for the company. If managers have long maintained control over contractors, an audit may be in order.
But, determining which standard to apply can be difficult. One of the first moves President Donald Trump's U.S. Department of Labor made was rescinding an Obama-era Administrator’s Interpretation on classification. But the agency hasn’t issued any further clarification on its stance and federal agencies and the courts continue to enforce disparate tests for classification.
DOL’s is an important starting point, and the National Labor Relations Board also has its own, Maureen A. Salas, a shareholder at Werman Salas P.C., noted at a conference last year. And finding out what test the courts have applied in your region can be important, too.
But, classification can be fact-specific, so be wary of too much reliance on individual opinions, experts said. Courts have noted that similar cases can have different outcomes. "This is such a difficult area," Marisa Warren Sternstein, counsel for Dentsu Aegis Network, said. So consider the economic realities, look at schedules and talk to people to find out what they’re really doing. "And remember that things change, so you have to stay on top of this," she added.