Contingent Workforce: Business and Legal Strategies

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Michael S. Horne, Thomas S. Williamson, Jr., Anthony Herman

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More and more employers rely on part-time employees, independent contractors, “temps” and others to solve their staffing needs. Despite their advantages, nontraditional work arrangements can raise a variety of complex legal issues. For a complete understanding of the benefits and burdens of these alternative approaches, read The Contingent Workforce: Business and Legal Strategies. Spanning several legal disciplines—tax, employee benefits, labor and discrimination—it explains the different types of work arrangements and their legal consequences. This timely book also includes detailed discussion of the tests used and the factors weighed when determining “employee status” under federal and state statutes and case law.

Book #00653; looseleaf, one volume, 596 pages; published in 2000. ISBN: 978-1-58852-090-6

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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 596
  • ISBN: 978-1-58852-090-6
  • Pub#/SKU#: 653
  • Volume(s): 1

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  • Michael S. Horne
Michael S. Horne is a retired partner of the firm of Covington & Burling LLP in Washington, D.C. He practiced primarily in the employment area, both as an advisor and litigator, and had been lead counsel in numerous notable cases, including Capital Cities/ABC v. Ratcliff (holding that a large class of workers claiming to be “employees” were not entitled to participate in the company's employee benefit plans) and the successful defense of John Deere & Company in a class action discrimination law suit. He received his J.D. In 1962 from Harvard Law School, where he was an editor of the Harvard Law Review. He is a member of the Bar Association of the District of Columbia, the American Bar Association, and the American Judicature Society.

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  • Thomas S. Williamson, Jr.
Thomas S. Williamson, Jr. is a partner in the law firm of Covington & Burling LLP in Washington, D.C., and chairs the firm's employment practice group. He specializes in litigation involving employment law and health and welfare law matters for state governments. A former Rhodes Scholar, he has served as Solicitor of Labor for the U.S. Department of Labor (1993-1996) and as Deputy Inspector General of the U.S. Department of Energy (1978-1981). Mr. Williamson is the former Chair of the Texaco Task Force on Equality and Fairness (1998-2002); and he served as the president of Harvard University's Board of Overseers (2002-2003). Mr. Williamson is currently on the Board of Directors of the Lawyers; Committee for Civil Rights Under Law; the Washington Lawyers Committee for Civil Rights and Urban Affairs; and the DC Bar Foundation. He received his J.D. in 1974 from Boalt Hall, University of California at Berkeley. He is admitted to the bar in the District of Columbia and California (inactive). Mr. Williamson is also a member of the American Law Institute.

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  • Anthony Herman
Anthony Herman is a partner in the firm of Covington & Burling LLP in Washington, D.C. He specializes in labor and employment, and concentrates on collective bargaining and arbitration on behalf of employers and employment litigation. He has conducted collective bargaining negotiations on behalf of many notable clients, including the management of the FAA, the Mayor of the District of Columbia and the National Hockey League. Mr. Herman has taught and published on labor and employment issues. In his pre-legal career, he was an official with the Textile Workers Union of America, the American Federation of State, County and Municipal Employees, and the Amalgamated Clothing & Textile Workers Union. He received his J.D. from Harvard Law School in 1986 and is admitted to the bar in the District of Columbia and Pennsylvania.

Alternative Workforce Arrangements

§ 1.01 Introduction
[1] Types of Contingent Workers
§ 1.02 Early Demographic Estimates
§ 1.03 Definitions Used by the Bureau of Labor Statistics (BLS)
[1] BLS Definition of “Contingent Workers”
[2] BLS Definition of Workers in “Alternative Employment Arrangements”
§ 1.04 The BLS Findings
§ 1.05 Differences Within the Alternative Workforce
§ 1.06 Differences in Employee Benefits
[1] Health Insurance Coverage
[2] Pension Plan Eligibility
§ 1.07 Advantages and Disadvantages of Alternative Workforce Arrangements
§ 1.08 Statistics Since 2001

Determining Whether a Worker Is an “Employee”

§ 2.01 Introduction
[1] Federal and State Laws
[2] The International Arena
§ 2.02 The Common Law Agency Test
[1] The Central Question: Who Has Control?
[2] Factors Considered in the Common Law Agency Test
§ 2.03 The Economic Realities Test
[1] The Central Question: Is the Worker Economically Dependent?
[2] Does the Economic Realities Test Lead to a Different Outcome?
§ 2.04 The Hybrid Test
[1] A Combination of the Other Tests
[2] Does the Hybrid Test Lead to a Different Outcome?
§ 2.05 Which Test Applies?
[1] The Common Law Agency Test Presumption
[2] The Purposes Underlying the Legislation
§ 2.06 Statutes Using the Common Law Agency Test
[1] Tax Statutes
[2] Employee Retirement Income Security Act of 1974 (ERISA)
[3] Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA)
[4] Occupational Safety and Health Act of 1970 (OSHA)
[5] National Labor Relations Act (NLRA)
§ 2.07 Statutes Using the Economic Realities Test
[1] Fair Labor Standards Act of 1938 (FLSA)
[2] Family and Medical Leave Act of 1993 (FMLA)
[3] Equal Pay Act of 1963
[4] Employee Polygraph Protection Act of 1988 (EPPA)
§ 2.08 Statutes for Which the Hybrid Test Has Been Used
[1] Title VII of the Civil Rights Act of 1964
[2] Americans with Disabilities Act of 1990 (ADA)
[3] Age Discrimination in Employment Act of 1967 (ADEA)
§ 2.09 Special Tests Used to Distinguish Partners and Others from “Employees”
[1] Partners
[2] Directors
[3] Owners
[4] Volunteers
[5] Undergraduate and Graduate Students

“Employee” Status Under Federal Law

§ 3.01 Introduction
§ 3.02 Tax Laws
[1] Employment Taxes
[2] Income Taxes
§ 3.03 Employee Benefits Laws
[1] Employee Retirement Income Security Act of 1974 (ERISA)
[2] Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA)
[3] Health Care Reform
§ 3.04 Mandated Benefits and Protections Laws
[1] Fair Labor Standards Act of 1938 (FLSA)
[2] Family and Medical Leave Act of 1993 (FMLA)
[3] Occupational Safety and Health Act of 1970 (OSHA)
[4] Federal Mine Safety and Health Act of 1977 (MSHA)
[5] Contract Labor Standards
[6] Worker Adjustment and Retraining Notification Act (WARN)
[7] Migrant and Seasonal Agricultural Worker Protection Act (MSPA)
[8] Consumer Credit Protection Act (CCPA)
§ 3.05 Workers’ Compensation Laws
[1] Longshore and Harbor Workers’ Compensation Act (LHWCA)
[2] Black Lung Benefits Act of 1972 (BLBA)
§ 3.06 Discrimination and Affirmative Action Law
[1] 42 U.S.C. Section 1981
[2] Title VII of the Civil Rights Act of 1964 (Title VII)
[3] Equal Pay Act of 1963
[4] Americans with Disabilities Act of 1990 (ADA)
[5] Rehabilitation Act of 1973
[6] Age Discrimination in Employment Act of 1967 (ADEA)
[7] Executive Order No. 11,246
[8] Vietnam Era Veterans’ Readjustment Assistance Act of 1972 (VEVRA)
[9] Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)
[10] Immigration Reform and Control Act of 1986 (IRCA)
[11] Lilly Ledbetter Fair Pay Act of 2009
§ 3.07 Privacy Laws
[1] Employee Polygraph Protection Act of 1988 (EPPA)
[2] Constitutional Limitations on Federally Mandated Drug Testing of Private Sector Employees
[3] Health Insirance Portability and Accountability Act (HIPAA)
§ 3.08 Collective Bargaining Laws: National Labor Relations Act (NLRA)
§ 3.09 Whistleblower Protection Provisions of Federal Law

“Employee” Status Under State Law

§ 4.01 Introduction
§ 4.02 State Laws That Are Based on Similar Federal Laws
[1] Tax Laws
[2] Protections Laws
[3] Discrimination and Affirmative Action Laws
[4] Privacy Laws
§ 4.03 Workplace Rights and Protections for Nursing Mothers
§ 4.04  Workers' Compensation Laws
§ 4.05 Whistleblower Protection Laws
[1] Health and Safety Obligations
[2] Retaliation Against “Whistleblowers” Who Assert Civil Rights Claims
§ 4.06 Unemployment Compensation Benefits
[1] Generally
[2] Eligibility, Disqualifying Events, and Reestablishment of Eligibility
§ 4.07 Wrongful Discharge

Federal Taxation of the Employment Relationship

§ 5.01 Introduction
§ 5.02 The Definition of Employment for Federal Tax Purposes
[1] The Common Law Standard
[2] Statutory Employees and Nonemployees
§ 5.03 Statutory Relief from Employment Taxes
[1] Section 530 of the Revenue Act of 1978
[2] Section 3509: Relief from Withholding Obligations
§ 5.04 Contingent Workforce Tax Issues
[1] Workers Supplied by Third Parties
[2] Effect of Inconsistent Employee Status Determinations on Qualified Plans
§ 5.05 Voluntary Classification Program

Employee Benefits Issues

§ 6.01 Introduction
§ 6.02 The Scope of ERISA
[1] Plans Governed by ERISA
[2] Employee Benefits Not Governed by ERISA
[3] The Four Titles of ERISA
§ 6.03 Participation in ERISA Plans
[1] ERISA’s Definition of Participants, Employees, and Beneficiaries
[2] ERISA Does Not Mandate Coverage of All Employees
[3] The Exclusive Benefit Rule
[4] Tax Consequences of Misclassification
§ 6.04 Professional Employer Organizations—Who Is the Employer?
§ 6.05 Tax Consequences of Excluding Contingent Workers from ERISA Plans
[1] Basic Code Requirements for Tax-Qualified Status
[2] Code Section 414(n): Leased Employees
§ 6.06 Permissible Methods of Limiting ERISA Plan Coverage
[1] Plan Provisions
[2] Bilateral Contract
[3] Waiver

Litigation Over Contingent Worker Claims for Benefits

§ 6A.01 Introduction
§ 6A.02 Claims on Behalf of Contingent Workers
[1] ERISA Claims
[2] State Law Claims
[3] Claims Against Government-Sponsored Benefit Plans
[4] Claims Asserted by Multiemployer Plans
§ 6A.03 Standing to Sue Under ERISA
§ 6A.03A Claims Based on ERISA Section 510 and ERISA’s Fiduciary Obligations
[1] Protections Available under Section 510
[2] Changes in the Employment Status of Ongoing Workers That May Violate Section 510
[3] Terminating Workers, Applicability of Section 510
[4] Section 510 and Refusals to Hire or Rehire; Initial Classifications
[5] Misclassification of Workers: Breach of Fiduciary Duty?
§ 6A.04 Class Certification Issues
§ 6A.05 Issues Posed by the Firestone Decision
[1] Exhaustion of Remedies
[2] Scope of Deferential Review
[3] Scope of Discovery
§ 6A.06 The Statute of Limitations Defense

Employment Issues and the NLRA

§ 7.01 Introduction
§ 7.02 The Significance of “Employee” Status
§ 7.03 The Statutory Definition of “Employee”
§ 7.04 The “Independent Contractor” Exclusion
[1] Interpretation of the “Independent Contractor” Exclusion: General Principles
[2] Roadway and Dial-a-Mattress
[3] Subsequent Driver Cases
§ 7.05 Staffing Firm-Client Relationships
[1] Restrictions on the Creation of Staffing Relationships
[2] Determining Which Entity Is the Employer for NLRA Purposes
[3] Test for Determining Whether the Client Firm Is a Joint Employer
[4] Consequences of Joint Employer Status
[5] Life After the Oakwood Care Center Decision
§ 7.06 Invalidation of NLRB Rulings by New Process Steel
§ 7.06A Unfair Labor Practices
§ 7.07 Conclusion

Employment Issues and Federal Antidiscrimination Laws

§ 8.01 Introduction
§ 8.02 Title VII of the Civil Rights Act of 1964 (Title VII)
[1] Introduction
[2] Part-Time Workers
[3] Independent Contractors
[4] Contingent Workers
[5] Retaliation Claims under Title VII
§ 8.03 Age Discrimination in Employment Act of 1967 (ADEA)
[1] Introduction
[2] Part-Time Workers
[3] Independent Contractors
[4] Contingent Workers
§ 8.04 Americans with Disabilities Act of 1990 (ADA)
[1] Introduction
[2] Part-Time Workers
[3] Independent Contractors
[4] Contingent Workers
§ 8.05 Rehabilitation Act of 1973 (Rehabilitation Act)
[1] Introduction
[2] Part-Time Workers
[3] Independent Contractors
[4] Contingent Workers
§ 8.06 Equal Pay Act of 1963
[1] Introduction
[2] Part-Time Workers
[3] Independent Contractors
[4] Contingent Workers
§ 8.07 42 U.S.C. Section 1981 (Section 1981)
[1] Introduction
[2] Part-Time Workers
[3] Independent Contractors
[4] Contingent Workers
§ 8.08 Executive Orders and Management Directives
[1] Executive Order 11,246 (E.O. 11,246)
[2]  Management Directives and Additional Executive Orders
§ 8.09 The No FEAR Act
§ 8.10 The Genetic Information Nondiscrimination Act
§ 8.11 Where the Law Is Heading

Regulation of Third-Party Providers

§ 9.01 Introduction
§ 9.02 Licensing and Registration
[1] Introduction
[2] Licensing Requirements for Employee Leasing Companies
[3] Registration of Employee Leasing Companies
[4] Regulation by Definition of Employer or Employing Unit
[5] Registration of Temporary Staffing Firms
§ 9.03 Insurance Requirements
[1] Workers’ Compensation Insurance
[2] Unemployment Compensation
[3] Health Insurance
§ 9.04 Special Tax Treatment

Additional Resources on the Web Table of Abbreviations Index