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Contingent Workforce

Overview

The workforce is changing. The prevalence of gig workers, independent contractors, outsourced and managed services, consulting firms, staffing agency relationships, and other types of nontraditional and nonemployee workers creates legal challenges that did not exist 10 years ago. Claims of independent contractor misclassification and joint employment are rampant, and the question of “Who is my employee?” is more difficult than ever to answer. Legal compliance in this new environment requires a new kind of legal team – one that has vast experience in this particular niche.

Our nationwide Contingent Workforce team provides comprehensive, practical advice to businesses that use outsourced services, contingent labor and nonemployee workers; companies that supply contingent labor and outsourced services; and those that facilitate the process, including managed service providers and companies building technology platforms.

Resources

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The stakes are high. If nonemployee workers are deemed to be your company’s employees (or joint employees), then your company may be held liable for having failed to comply with all the laws that apply to employees. These may include laws relating to tax, benefits, employment, unemployment, workers’ compensation and more. Equally important, joint employment may be inherent in certain types of relationships, and as such it is critical for the parties to acknowledge and manage it, from both the contractual and legal standpoints.

The issue is complex. For example, the tests for worker classification vary by law, by state and sometimes by industry. A multistate business may be subject to dozens of disparate tests for determining whether a worker is that business’s employee. There is no one-size-fits-all solution.

The rules are changing. States are passing new laws, and regulatory agencies and judges are changing their interpretations of existing laws. Our team is following each new development, and we help our clients prepare for what may emerge next.

The answers are in reach. Our team provides comprehensive, practical and customized strategies that reduce risk and position clients to advance their business objectives, now and in the future. Clients trust our multidisciplinary approach, which draws on the experience of attorneys from our labor and employment, tax, employee benefits, government relations, corporate transactions, intellectual property, data privacy, immigration, and other practices.

We counsel businesses regarding:
  • Compliance (nationwide, federal, state and local).
  • Independent contractor misclassification.
  • Joint employment.
  • Contracts and vendor agreements.
  • Statement of work and work order engagements.
  • Employee and nonemployee benefits and perquisites.
  • Employee classification.
  • Risk management.
  • Tax strategies.
  • Transactions.
  • Technology licensing, ownership and compliance.
We represent our clients in disputes, including:
  • Litigation.
  • Class and collective actions.
  • Agency disputes.
  • Investigations (e.g., DOL, IRS, state agencies, etc.).
  • Arbitration and mediation.
  • National Labor Relations Act proceedings.
  • Private Attorneys General Act claims.
  • Tax controversies.
  • Tax audits, including Form 1099 and state law audits.
We have a broad range of industry experience, including:
  • Communications.
  • Employment.
  • Energy.
  • Entertainment.
  • Healthcare/medical.
  • Hospitality.
  • Information technology.
  • Insurance.
  • Manufacturing.
  • Media.
  • Real estate.
  • Retail and e-retail/e-commerce.
  • Technology.
  • Transportation.

Select Experience

Representative experience involving suppliers of contingent labor:
  • Designed custom-built agent of record and independent contractor compliance programs for nationwide service providers.
  • Counseled clients on the acquisition of staffing firm assets, including customer contracts with and without a managed service provider or vendor management system involved in the staffing relationship.
  • Negotiated federal government supplier contracts (as a prime and as a subcontractor), in particular with the military but also with other governmental agencies and departments.
Representative experience involving users of contingent labor:
  • Developed customized programs and agreements for retention of independent contractors by large nationwide retailers, insurers, installers, property management companies (and other industries).
  • Advised clients on Affordable Care Act compliance, including whether and how to count individual independent contractors and vendor-supplied labor.
  • Drafted clauses and agreements with suppliers of non-employee labor to minimize risks related to misclassification and joint employment.
Representative experience involving gig economy platforms:
  • Advised a Fortune 500 enterprise client engaged in the business of connecting consumers with independent home repair technicians for appliances (including on-warranty and off-warranty appliances) over a proprietary technology platform.
  • Advised a gig platform company engaged in connecting skilled and unskilled laborers to on-demand jobs across the United States.
  • Advised a gig platform company engaged in connecting low-skilled laborers to on-demand, short-term warehouse and other labor-intensive jobs.
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Professionals

Name Title Office Email
W. Barron A. Avery
Washington, D.C.
+1.202.861.1705
Partner
W. Barron A. Avery
Partner Washington, D.C.
Gilbert P. Brosky
Cleveland
+1.216.861.7547
Partner
Gilbert P. Brosky
Partner Cleveland
Ann M. Caresani
Cleveland
+1.216.861.6294
Partner
Ann M. Caresani
Partner Cleveland
Neil Carrey
Los Angeles
+1.310.442.8835
Of Counsel
Neil Carrey
Of Counsel Los Angeles
Jeffrey E. Decker
Orlando
+1.407.649.4017
Partner
Jeffrey E. Decker
Partner Orlando
Shareef Farag
Los Angeles
+1.310.979.8472
Partner
Shareef Farag
Partner Los Angeles
Fanny A. Ferdman
New York
+1.212.589.4283
Counsel
Fanny A. Ferdman
Counsel New York
Peter G. Fischer
Washington, D.C.
+1.202.861.1614
Partner
Peter G. Fischer
Partner Washington, D.C.
Matthew W. Hoyt
Columbus
+1.614.462.2650
Partner
Matthew W. Hoyt
Partner Columbus
Susan Whittaker Hughes
Cleveland
+1.216.861.7841
Partner
Susan Whittaker Hughes
Partner Cleveland
Brandon E. Kepple
Orlando
+1.407.649.4693
Counsel
Brandon E. Kepple
Counsel Orlando
Caroline M. Landt
Orlando
+1.407.649.4689
Counsel
Caroline M. Landt
Counsel Orlando
Todd H. Lebowitz
Cleveland
+1.216.861.7899
Partner
Todd H. Lebowitz
Partner Cleveland
James D. Levine
Atlanta
+1.404.946.9779
Partner
James D. Levine
Partner Atlanta
John J. McGowan Jr.
Cleveland
+1.216.861.7475
Partner
John J. McGowan Jr.
Partner Cleveland
Melinda L. McLellan
New York
+1.212.589.4679
Partner
Melinda L. McLellan
Partner New York
Gregory V. Mersol
Cleveland
+1.216.861.7935
Partner
Gregory V. Mersol
Partner Cleveland
Margaret Rosenthal
Los Angeles
+1.310.442.8893
Partner
Margaret Rosenthal
Partner Los Angeles
Amy J. Traub
New York
+1.212.589.4248
Partner
Amy J. Traub
Partner New York
Mark Zisholtz
Atlanta
+1.404.946.9826
Partner
Mark Zisholtz
Partner Atlanta

Experience

Representative experience involving suppliers of contingent labor:
  • Designed custom-built agent of record and independent contractor compliance programs for nationwide service providers.
  • Counseled clients on the acquisition of staffing firm assets, including customer contracts with and without a managed service provider or vendor management system involved in the staffing relationship.
  • Negotiated federal government supplier contracts (as a prime and as a subcontractor), in particular with the military but also with other governmental agencies and departments.
  • Created a parent-subsidiary corporate structure for domestic and foreign staffing and alternative workforce providers to maximize tax savings, enhance branding and mitigate compliance/legal exposure.
  • Provided substantive assistance in responding to enterprise RFPs and performing in-person compliance presentations on behalf of clients.
  • Advised clients with respect to compliance with the Affordable Care Act, state healthcare laws and other employee benefits in the context of multiparty arrangements.
  • Redrafted and modified employee benefit plans to protect them from exposure to claims by nonemployee workers that they are entitled to participate in employer-sponsored plans.
Representative experience involving users of contingent labor:
  • Developed customized programs and agreements for retention of independent contractors by large nationwide retailers, insurers, installers, property management companies (and other industries).
  • Advised clients on Affordable Care Act compliance, including whether and how to count individual independent contractors and vendor-supplied labor.
  • Drafted clauses and agreements with suppliers of non-employee labor to minimize risks related to misclassification and joint employment.
  • Enabled a public company to assemble and safely contract with a fleet of independent operators, as self-employed entrepreneurs, by arranging for the entrepreneurs to have access to a free-standing tax-qualified plan program and a free-standing fully insured group health insurance plan program.
  • Redrafted and modified employee benefit plans to protect them from exposure to claims by non-employee workers.
  • Won dismissal of class action filed by floor covering installers against a nationwide retailer, alleging independent contractor misclassification and failure to comply with federal background check laws.
  • Achieved settlement with no dollars paid in California class action filed by class of property inspectors, earning full dismissal based on defense that centered around contractual clauses drafted by our attorneys.
  • Avoided class certification and obtained extremely favorable settlement in a series of FLSA putative collective action cases alleging cable installers were misclassified as independent contractors instead of as employees.
Representative experience involving gig economy platforms:
  • Advised a Fortune 500 enterprise client engaged in the business of connecting consumers with independent home repair technicians for appliances (including on-warranty and off-warranty appliances) over a proprietary technology platform.
  • Advised a gig platform company engaged in connecting skilled and unskilled laborers to on-demand jobs across the United States.
  • Advised a gig platform company engaged in connecting low-skilled laborers to on-demand, short-term warehouse and other labor-intensive jobs.
  • Advised a company engaged in the business of connecting IT and other skilled temporary labor with enterprise and middle-market buyers over a proprietary technology platform.
  • Negotiated VMS master service and technology agreements for large and small buyers, including enterprise companies.
  • Negotiated technology statements of work for outsourced and managed services.
  • Negotiated cloud-based staffing provider MSAs.

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Bring Forth the Tiger-Dogs! Here's a Quick Status Check on the Challenges to California's New Independent Contractor Law
By Todd H. Lebowitz
February 10, 2020
When outside forces pose a threat to people’s livelihood, people will go to great lengths to fight back. For example, when monkeys began ravaging the crops of a farmer in Karnataka, India, the imaginitive farmer painted his dog to look...
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Employment Law Spotlight
What Is Joint Employment? New DOL Rules Take Effect in 60 Days
By Todd H. Lebowitz
January 13, 2020
This week’s post is Family Feud Style. Name Three Things That Sound Like They Would Be “Joint Employment” But Are Not: 1. Long-haired, easy-going product tester at the local wacky tobacky dispensary. 2. Note taker at an orthopedist’s...
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Employment Law Spotlight
Not Dead Yet: The States' New Strategy for Attacking Independent Contractor Misclassification Can Be Relentless — and Costly.
By Todd H. Lebowitz
November 20, 2019
For years, state governments have claimed they were losing hundreds of millions of dollars in unpaid withholdings as a result of independent contractor misclassification. Now, one state is making a grab for a massive piece of that pie —...
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Employment Law Spotlight
New York City Extends NYCHRL Employment Protections to Freelancers and Independent Contractors
By Amy J. Traub
November 18, 2019
On Oct. 13, 2019, New York City enacted Int. 136-A (the Law), expanding the employment protections of the New York City Human Rights Law (NYCHRL) to freelancers and independent contractors. The Law will take effect on Jan. 11, 2020. The...
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Employment Law Spotlight
California Court of Appeal Determines Customer of Staffing Agency Is Employer Because of Direction and Control
By Eric W. Witt
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