The purpose of this article is to update readers on what has been happening recently with Illinois Department of Employment Security ("IDES") Hearings (and IDES audits) regarding the classification of owner-operator truck drivers (i.e., are they independent contractors or misclassified employees for purposes of Section 212.1?).
There is a wide variation, state by state, as far as the treatment of the independent contractor versus employee classification issue. Laws regarding independent contractor status and unemployment insurance benefits, workers' compensation coverage, overtime, etc. vary widely from state to state. Yes, there are also Federal laws which impact independent contractor status; but, increasingly, states are enacting new and creative laws requiring employers to "jump through hoops" as far as permitting independent contractor usage.
Good news for New Jersey employers who use independent contractors! Happily, the Superior Court of New Jersey Appellate Division [in Garden State Fireworks Inc. v. NJ Dept. of Labor, A-1581-15T2 (N.J. App. Div. September 29, 2017] recently decided that a pyrotechnics company's legal relationship with its independent contractor pyrotechnicians satisfied all three parts of the "ABC test" as laid out in New Jersey's definition of independent contractor status for unemployment insurance purposes.
If your Company is audited by the Illinois Department of Employment Security (IDES) and you use independent contractors, you will (almost always!) be asked to complete the IDES Worker Relationship Questionnaire for each group or type of independent contractor.
On Wednesday, June 7, 2017, the U.S. Department of Labor (US DOL) issued a three sentence statement trumpeted by national news and happily noted by many employers. The recently-confirmed Labor Secretary, Alexander Acosta, personally announced that he has withdrawn the US DOL'S two Interpretations on two key legal issues worrying many businesses: joint employment and independent contractors.
In recent years, many states have passed laws attempting to regulate ride-hailing companies such as Uber (and other members of the "gig economy"). These new laws cover how to treat independent contractors with regard to insurance requirements, recordkeeping, inspections and background checks, etc.
This article is being written as a cautionary tale for readers who are interested in how to have a good outcome in an Illinois Department of Employment Security (IDES) audit, especially where independent contractors (1099 workers) are at issue.
On March 3, 2017, the U.S. Court of Appeals for the D.C. Circuit ("D.C. Circuit") issued a forceful decision strongly in favor of FedEx and its claims of independent contractor status for some of its drivers. The D.C. Circuit squarely disagreed with the National Labor Relations Board (NLRB), which had held that single-route Ground Division drivers for FedEx were employees (and not independent contractors) under the NLRB independent contractor test. FedEx Home Delivery, an Operating Division of FedEx Ground Package System, Inc. v. NLRB, Nos. 14-1196, 15-1066, 15-1116 (D.C. Cir. Mar. 3, 2017).
Over the many years during which I have helped Illinois companies with their use of independent contractors, the most urgent call I get is from Illinois companies who have just found out they are going to be audited by the Illinois Department of Employment Security (IDES).
With an increasing pace, the news is filled with lawsuits against companies who use independent contractors. This marked litigation trend spans the entire United States and shows no sign of letting up. Companies who use independent contractors need to carefully review their practices with their independent contractors and try to reduce their risk in using independent contractors.