Contingent Workforce

Representative experience involving users of contingent labor:

• Represented numerous large national corporations, including several large retailers and manufacturers, in the negotiation of agreements for vendor management systems, managed service providers and staffing agencies across multiple industries.
• Regularly design and draft independent contractor, staffing agency and outsourced vendor agreements that include bespoke mechanisms designed to limit exposure to joint employment and misclassification claims and to reduce the likelihood that such claims are pursued.
• Regularly advise companies of all sizes on contingent workforce strategies, including providing training on joint employer and misclassification prevention strategies.
• Regularly advise clients on compliance with state and local laws governing independent contractor relationships, including freelancer laws, day labor laws, workplace fraud acts, reporting laws and safe harbor provisions.
• Obtained multiple prediscovery dismissals of independent contractor misclassification claims, all with no money paid, based on customized defense mechanisms developed by BakerHostetler in the independent contractor agreements; won a six-figure indemnity award in arbitration against one contractor who failed to comply with the customized dispute resolution process.
• Developed nationwide independent contractor compliance program for contracts with independent installation professionals, including drafting individual agreements and a dispute resolution program, Department of Housing and Urban Development Section 3 compliance, and regular advice on emerging issues.
• Advised a national retailer on the reconfiguration of its relationships with independent contractors, including updates to its agreements, internal documents, external practices and dispute resolution procedures.
• Developed customized programs and agreements for the retention of independent contractors by large nationwide retailers, insurers, installers, property management companies and other entities.
• Regularly advise business and civic organizations that use nonemployee workers on employee benefit compliance issues, including Affordable Care Act (ACA), Internal Revenue Code (IRC) and Employee Retirement Income Security Act (ERISA) requirements, and develop alternative structures to enable such nonemployee workers to make their own retirement savings, health insurance and similar arrangements.
• 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 had misclassified workers as independent contractors.
• Defended a delivery network company in an enforcement action brought by the San Francisco district attorney, alleging the company had misclassified workers as independent contractors.
• Defended dozens of California wage and hour and PAGA claims arising out of claims of joint employment or independent contractor misclassification, 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 a 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 a settlement with no dollars paid in a California class action filed by a class of property inspectors, earning full dismissal based on a defense that centered on contractual clauses drafted by our attorneys.
• Avoided class certification and obtained an extremely favorable settlement in a series of Fair Labor Standards Act putative collective action cases alleging that cable installers had been misclassified as independent contractors instead of as employees.
• Successfully defended clients in misclassification audits brought by federal and state agencies, including the IRS, the DOL, the California Employment Development Department and others.

Representative experience involving suppliers of contingent labor:

• Designed custom-built worker classification 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 contractor and as a subcontractor) with the military and 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 requests for proposals 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 nonemployee workers to their customers and to manage and minimize the ACA, the IRC and employee benefit (including ERISA) liabilities that such relationships create when a worker’s legal status is unclear or capable of being disputed.
• Analyze, provide recommendations for and redraft employee benefit plan eligibility terms to protect plans and sponsors from inadvertent but significant exposure to nonemployee worker claims.

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- 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 vendor management system (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 master service agreements (MSAs).
• Actively monitor the impact of the gig economy on benefit programs and assist employers in navigating this constantly-evolving legal environment.