Bipartisan support for stopping misclassification of workers

As we close in on election day, one thing seems clear: no matter what their political affiliation, voters want an end to corporations’ manipulations to boost profits and the pay of their top officers at the expense of working people.

In a survey conducted by the National Employment Law Project (NELP), 84% of  those surveyed — Democrats and Republicans across age groups — disapproved of corporations misclassifying employees as “independent contractors.” “[P]olling shows that 7 in 10 voters don’t trust employers to treat their employees fairly. A majority of voters believes that working hard isn’t enough anymore, because companies simply aren’t loyal to their employees. The strategy of hiring workers as contractors, even if lawfully done, is still offensive to most of us. By 78 percent to 12 percent, voters feel that workers are better off as direct employees than as independent contractors.”

WJP is working with the La. Workforce Commission to make sure workers and employers understand what it means to be an independent contractor. Most workers are employees and should be treated that way.

 

An Ounce of Prevention – Anticipating Changes to Companionship Regulations

“Enforcement of a final rule that takes effect Jan. 1, 2015, to extend Fair Labor Standards Act minimum-wage and overtime protections to certain direct-care workers is to be delayed, but employers should not hesitate to ensure timely compliance with the rule’s minimum-wage, overtime and record-keeping requirements. Effective Jan. 1, home-care agencies and third-party employers must pay at least the federal minimum wage and overtime to jointly or solely employed direct-care workers, such as a certified nursing assistant, home-health aide, personal care aide, caregiver or companion.

JOE RAEDLE / GETTY IMAGES Home care aides often make substantially less than their peers in hospitals and nursing homes

JOE RAEDLE / GETTY IMAGES
Home care aides often make substantially less than their peers in hospitals and nursing homes

“The key change that is applicable to private employers and to states is going to be tracking worker hours and better record-keeping practices,” said Sarah Leberstein, a lawyer with the National Employment Law Project and co-author of its Aug. 2011 “Fair Pay for Home Care Workers: Reforming the U.S. Department of Labor’s Companionship Regulations Under the Fair Labor Standards Act,” report. “It shouldn’t be rocket science. But some employers haven’t had to track hours worked by [home-care] workers,” she said, noting that this is especially true of states that thought of home-care workers as independent providers.

Workers should also be instructed on marking time worked, and employers should consider innovative ways to keep time records, Leberstein said. Under the final rule, “if the employee spends more time working than was anticipated, the employee must be paid,” Joseph K. Mulherin, a shareholder in Vedder Price’s Chicago office who advises employers on employment-law issues, said in a June 13, interview with Katarina E. Wiegele for Bloomberg BNA’s FLSA Litigation Tracker. “If the employee’s sleep time, meal periods or other periods of free time are interrupted, the interruption must be counted as hours worked.”

“In home-care work arrangements, there will undoubtedly be situations where the employee is working without the employer’s knowledge, e.g., because the employer is sleeping,” Mulherin said. “Thus, it is critical that employers require their employees to accurately self-report all actual work hours.”

The Labor Department Home Care web portal has employer resources and a page for workers to download a work calendar or link to a Smartphone app to track hours. For more information on the changes, see the Department of Labor Website: Home Health Care and the Companionship Services Exemption Under the Fair Labor Standards Act (FLSA)  or the Comparison of Current vs. Proposed Companionship Regulations. Or read more about innovative ideas for complying with the changes at Bloomberg BNA.

Janitorial Services Executive Speaks Out Against Worker Misclassification

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In April, Professional Janitorial Services Executive Don Dyer delivered testimony to the Texas House Business and Industry Committee, which is studying what more lawmakers might need to do to combat the problem of Misclassification and how prevalent this problem is in the janitorial industry.

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What is Employee Misclassification?

Certain corporations have chosen to cut corners and pad their profits by misclassifying their workers as “contractors” when they should have been classified as “employees”.  Employee misclassification is explicitly against the law, yet because of weak enforcement mechanisms there are virtually no tangible consequences for violating the law.  This oversight has opened the doors to a whole host of unethical practices including wage theft, tax evasion, and employee exploitation.

According to Dyer, negative impacts also include an unethical cost advantage of 30-40% by janitorial companies who misclassify their workers, the evasion of federal income taxes, Social Security payments, Medicare payments, and unemployment taxes, and the hiring of undocumented workers since they are the easiest to exploit and intimidate.

Read his full testimony here.