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Verrill Dana, LLP

Verrill Dana, LLP is one of New England's preeminent regional law firms. With offices in Portland and Augusta, ME; Boston, MA; Westport, CT; Providence, RI; and Washington D.C. Verrill Dana provides sophisticated legal representation to businesses and individuals in the traditional areas of litigation, real estate, business law, labor and employment law, employee benefits, environmental law, intellectual property and estate planning.  The Firm also has industry-focused specialties including higher education, health care and health technology, energy, and timberlands. 

Disclaimer:  The content presented in this blog is for general information only, is not intended to constitute legal advice and cannot be relied upon by any person as legal advice. While we welcome you to contact our blog authors at hrlawupdate@verrilldana.com, the submission of a comment or question does not create an attorney-client relationship between the Firm and you. 

Entries in Independent Contractor (12)

Wednesday
Aug172016

WWE “Wrestles” with the Question of Whether Road Warrior Animal was an Employee or Independent Contractor

The issue of Independent Contractor versus Employee has reared its ugly head once again, this time in the context of professional wrestling. A Connecticut lawsuit filed on behalf of retired wrestlers is seeking damages from World Wrestling Entertainment, Inc. for head injuries, alleged to have been sustained in the course of their “employment” as professional wrestlers. Among the many employment-related claims raised by the wrestlers is the claim that they were misclassified as independent contractors when they were, in fact, employees. As a result of the independent contractor classification, workers’ compensation benefits were not provided to the wrestlers. Additionally, the Complaint alleges that wrestlers were not provided with health insurance, and were largely limited to the medical treatment provided by WWE medical staff. The group of former wrestlers allege that they suffer from chronic traumatic encephalopathy (CTE), a progressive degenerative brain disease highlighted in the recent film “Concussion”. They are seeking compensatory and punitive damages among other remedies. Two similar lawsuits have been thrown out by Courts in recent years and it is not clear how the living Plaintiffs have determined that they suffer from CTE, since that condition is generally only able to be diagnosed by autopsy. Since an employment contract will not necessarily guarantee the existence of independent contractor status, the Court may well have to at least determine that threshold issue, if Plaintiffs are found to have standing to sue. For more details, read the 214 page complaint, Laurinaitis et. al v. World Wrestling Entertainment, Inc., et al., Case 3-16-cv-01209.

Wednesday
Aug032016

FLSA Construction Basics: Build a Solid Foundation with Proper Classification

New England Company & Affiliate Pay $2.6 Million in Back Wages

Over the past few years we have discussed the importance of proper classification of workers and the ever-increasing number of DOL audits and wage and hour lawsuits that are stemming from improper classification of the workforce. Yesterday, the Department of Labor announced that it reached a consent judgment with Force Corp. and its contractor AB Construction Group Inc. in which the companies will pay 478 workers $2.6 million in back wages, penalties, and damages as a result of the misclassification of employees as independent contractors. The consent judgment includes payment of approximately $2.4 million in wages and liquidated damages as well as $262,900 in civil penalties. The approximately $2.4 million is the DOL’s largest FLSA wage recovery in Massachusetts since 2009.

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Friday
Dec182015

Dashing Through the Snow: Jingle Bells and the “On-demand” Workforce

Dashing through the snow
On a one horse open sleigh
O’er the fields we go
Laughing all the way

Oh Jingle Bells... a fun and festive holiday song that always gets me in the wintery spirit. Here in Maine, however, we have yet to see any signs of winter, so feeling as though I needed to be put in a festive mood, I decided to listen to this holiday staple in my office this week. As I listened to the song, I began to wonder... who is driving that one horse open sleigh?

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Friday
Aug072015

I, Robot: How to be Paid Overtime for Document Review

As attorneys, we like to think that we are performing work that requires thought, insight, and independent legal judgment. We bristle at the idea that what we do can be performed by machines or that we can be replaced with a computer program, no matter how complex. We’re not robots after all! However, if we want to be paid overtime under the FLSA, perhaps we need to change our tune.

The plaintiff in Lola v. Skadden, Arps, Slate, Meagher & Flom, LLP, No. 14-3845 (2d Cir. July 23, 2015) was engaged to work on a document review project for Skadden through a legal staffing agency for a period of 15 months. He typically worked 45 to 50 hours a week and was paid $25 per hour, regardless of whether he worked over 40 hours in the week. Lola sued Skadden and the legal staffing agency, arguing that they had violated the FLSA by failing to pay him overtime.

The FLSA’s overtime provisions do not apply to attorneys “engaged in the practice of law.” Thus, in order to Lola to be entitled to overtime, the document review that he performed could not be considered engaging in the practice of law. But what does it mean to “practice law?”

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Tuesday
Jul212015

“Joy” is Lost, Others Are “Uber” Upset

Last week we posted about the DOL’s recent interpretation of workers’ status as employees versus independent contractors. Even if your company does not currently use any form of independent contractors (and thus you’ve been only following these changes in passing), it’s important that you understand the implications of these types of interpretations/court rulings as they affect a wide variety of services we use—from in-home cleaning to travel to the whole “on demand” economy.

While traditionally employers have been able to use independent contractors for a myriad of tasks, recently courts (and administrative agencies) have been limiting those positions that can be properly categorized as such. The expanding definitions of “employee” has assisted in the rise of class actions filed against companies all over the country by individuals alleging they have been improperly categorized—and thus denied benefits such as unemployment, workers compensation, minimum wage, and overtime.

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Friday
Jul172015

DOL Interpretation Could Have Big Wage & Hour and FMLA Implications

Big stuff from our friends at the U.S. Department of Labor: on Wednesday, they issued an interpretation regarding workers’ status as employees versus independent contractors under the Fair Labor Standards Act.

Apparently, we’ve all been doing this wrong. According to the DOL, “most workers are employees under the FLSA.” They base this conclusion upon the multi-factorial “economic realities” test that courts use to determine whether a worker is an employee or an independent contractor under the FLSA, which focuses on whether the worker is economically dependent on the employer or in business for him or herself. The interpretation contains a lengthy discussion of the relevant FLSA definitions and the statute’s scope to make the DOL’s argument.

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