I often think of the worker classification case I was involved with as a new attorney at the Employment Development Department. One of my witnesses, an independent contractor truck driver, testified that he netted over $30,000 more per year than I was grossing as a state attorney. I realized at that moment that I was involved in restricting this gentleman from engaging in a lawful business which worked very well for him. The California legislature may soon be faced with a similar burden.
The long-anticipated case Dynamex Operations West, Inc. v. Superior Court of Los Angeles, was issued on April 30, 2018. The case dealt with whether delivery drivers classified as independent contractors were misclassified as such under California Industrial Wage Commission Wage Order No. 9-2001.
The Treasury Inspector General for Tax Administration (TIGTA) recently released a report finding that the Internal Revenue Service (IRS) has failed to notify the majority of individuals they found to be victims of employment identity theft. When an identity thief uses another individual's information to obtain employment, the victim may have taxes computed based on income they did not personally earn, and may experience other difficulties. The IRS has a computer-based process to notify victims of the issue, but due to a programming error related to a decision to notify only newly identified victims, the IRS failed to notify over 450,000 individuals for processing year 2017. In addition, over 15,000 individuals who did receive notice (13.5 percent of the total group notified) were not actually victims of employment identity theft.
The Mobile Workforce State Income Tax Simplification Act of 2017, which aims to make a person's wages and other remuneration subject to income tax only in the employee's state of residence and the state where the employee was physically present and performed employment duties for more than 30 calendar days, was passed by the U.S. House of Representatives on June 20, 2017. Employers will not have state income tax withholding or reporting requirements for employees who do not fit these criteria. Certain classes of workers will not be considered employees for the purposes of this bill, including professional athletes and entertainers; film and video production employees; and prominent public figures providing services on a per-event basis. The U.S. Senate Committee on Finance currently has the proposed bill under review. Click here to track its progress.
In January, 2015, the California Supreme Court granted review of Dynamex Operations West, Inc. v. Superior Court (Lee) (2014) 230 Cal.App.4th 718.
U.S. Secretary of Labor Alexander Acosta announced on June 7, 2017 that the Department will no longer follow the informal guidance issued as Administrator Interpretation Letters in 2015 and 2016 regarding joint employment and independent contractors [here], signaling an easing of the federal guidance on the use of contract labor. According to its press release, "The Department will continue to fully and fairly enforce all laws within its jurisdiction, including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act." To read the full press release, click here.
For employers, the new year brings many new laws regarding worker benefits, hiring practices, and workplace protections. In addition to ensuring workers are properly classified, employers should also be aware of the increase to California's Minimum Wage, the identification of restroom facilities, smoking prohibition, and rights to refuse to travel.
In his speech to the National Press Club recently, IRS Commissioner John Koskinen noted that the IRS' age 25-and-under recruits has recently dropped from 650 to only 200. Since more than 40 percent of the current IRS workforce will be eligible for retirement in the next four years, the Commissioner is concerned that the IRS will not have the necessary leadership in the IRS in the next decade.
On the heels of the most recent development in the Uber worker classification dispute, the Internal Revenue Service has put together a free webinar about the differences between Employee and Independent Contractor worker classifications. Join the agency on May 12, 2016 at 2:00 pm EST (11:00 am PST) to learn about control factors, voluntary compliance, and IRS Form SS-8. Register here: https://www.webcaster4.com/Webcast/Page/925/14635
Employers who wish to utilize independent contractors in their business model may often do so, however, adequate review of the employers' documents and practices is crucial to a successful business plan based on an independent contractor workforce. This week, Uber learned this lesson the hard way.