Contingent Workforce

Overview

Today’s workforce looks nothing like what Dolly Parton describes in “9 to 5.” Businesses need experienced counsel who understand the laws affecting the modern workplace of gig workers, temp labor, outsourced solutions, and independent contractors. Whether you are a company that supplies or uses contingent labor or a technology provider that connects workers to jobs, we are that experienced counsel.

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).
  • Regularly advise and represent business and civic organizations that use non-employee workers, to both (1) maintain their benefit plans in compliance with all relevant Affordable Care Act, Internal Revenue Code and employee benefit (ERISA) requirements, and (2) enable such non-employee workers to make their own retirement savings, health insurance and similar arrangements. 
  • 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
Partner Washington, D.C.
Partner Cleveland
Partner Cleveland
Of Counsel Los Angeles
Partner Orlando
Partner Los Angeles
Counsel New York
Partner Washington, D.C.
Partner Columbus
Partner Cleveland
Associate Houston
Counsel Orlando
Partner Cleveland
Partner Atlanta
Partner Cleveland
Partner New York
Partner Cleveland
Partner Los Angeles
Partner New York

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.
  • Regularly advise and represent staffing companies in connection with the business and regulatory risks they face when providing employees and non-employee workers to their customers, to manage and minimize the Affordable Care Act, Internal Revenue Code and employee benefit (ERISA) liabilities that such relationships create when a worker’s legal status is unclear, or capable of being disputed. 
  • Analyze, provide recommendations and redraft employee benefit plan eligibility terms to protect plans and sponsors from inadvertent but significant exposure to nonemployee worker claims.
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).
  • Regularly advise and represent business and civic organizations that use non-employee workers, to both (1) maintain their benefit plans in compliance with all relevant Affordable Care Act, Internal Revenue Code and employee benefit (ERISA) requirements, and (2) enable such non-employee workers to make their own retirement savings, health insurance and similar arrangements. 
  • 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.
  • Help business organizations that buy or sell trades or businesses recognize, and evaluate, the regulatory and contractual risks that result, or can result, from worker misclassification, and then help those organizations either mitigate those risks or price them fairly in the related negotiations.   
  • Defended a market-leading consumer products company in an enforcement action brought by the California Attorney General, Los Angeles District Attorney and Los Angeles County Counsel, alleging false and misleading advertising, public nuisance and unfair competition.
  • Defended a rideshare company in an enforcement action brought by the California Attorney General and the San Francisco, Los Angeles and San Diego City Attorneys, alleging the company has misclassified workers as independent contractors.
  • Defended a delivery network company in an enforcement action brought by the San Francisco District Attorney, alleging the company has misclassified workers as independent contractors.
  • Defended dozens of California wage and hour and PAGA claims, both individual and class/collective, including claims related to meal and rest breaks; pay practices; overtime; wage statements; reimbursement of business expenses; and unfair competition.
  • 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.
  • Represent and defend business and civic organizations, and the benefit plans they sponsor, fund, or administer, from enforcement actions brought by regulators and from claims brought by workers in civil litigation, involving the alleged wrongful inclusion, or wrongful exclusion, of such workers from such benefit plans.   
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.
  • We actively monitor the impact of the gig economy on benefit programs and assist employers in navigating this emerging environment.

Key Contacts

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In The Blogs

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Employment Law Spotlight
Breaking News? DOL Rescinds Independent Contractor Rule That Never Took Effect
By Todd H. Lebowitz
May 6, 2021
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Employment Law Spotlight
Schrödinger's Cat? Ninth Circuit Disrupts Trucking Industry with Contractor Misclassification Ruling
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Employment Law Spotlight
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Employment Law Spotlight
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Employment Law Spotlight
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By Todd H. Lebowitz
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