US Department of Labor Aims to Revise Independent Contractor Rule

The Best Course of Action for Employers and Workers

Wrongful classification affects a wide range of workers across the industry spectrum and is a problem DOL remains committed to addressing. Now is the right time for businesses to review their policies, practices, and relationships and for workers to be thoughtful about their circumstances. Employers and workers concerned about the potential for misclassification should examine their current relationships through the lens of the Proposed Rule to assess how changes anticipated next year may affect them.

US Department of Labor Aims to Revise Independent Contractor Rule

The U.S. Department of Labor recently published its proposed rule on Employee or Independent Contractor Classification Under the Fair Labor Standards Act (FLSA), reopening the debate over how to classify US workers. Worker classification refers to whether a worker should be distinguished as an employee or an independent contractor. A host of important considerations underlie the distinction, making clarity important for both workers and employers. The ramifications encompass significant tax and liability issues for businesses and important protections and rights for workers. If the legal test used to determine how a worker is classified is modified again, US employers and workers will need to reexamine their relationships with one another.

The Independent Contractor/Employee Distinction and Misclassification

Employees are entitled to protections and rights, including minimum wage and overtime pay under federal labor laws, while contractors are not. And while independent contractors may enjoy certain freedoms employees do not, businesses enjoy avoiding the taxes and legal liabilities that accompany employment. According to the Department of Labor’s October 11, 2022, News Release, misclassifying workers as independent contractors “promotes wage theft, allows certain employers to gain an unfair advantage over law-abiding businesses, and hurts the economy at large.” The DOL intends to crack down on the damaging practice.

How the Determination Is Made: The Economic Realities Test

For seventy-plus years, the “economic realities test” has been the standard to determine whether a worker is an employee or an independent contractor under the FLSA. While the longstanding test has endured some sculpting over the years, its main consideration remains whether a worker is economically dependent on the employer for work or is truly in business for themself. The prominent factors guiding the inquiry are:

  • The worker’s opportunity for profit or loss depending on managerial skill.
  • The extent to which the work performed is an integral part of the employer’s business.
  • The investments by the worker and the employer.
  • The degree of skill and initiative exhibited by the worker.
  • The degree of permanence of the working relationship.
  • The nature and degree of the worker’s control over the work.

Weighing each factor equally and holistically is a key component of the Proposed Rule and represents a change from the current standard.

The 2021 Rule and the DOL’s Proposed Rule 

Currently, the 2021 Rule prioritizes the degree of control and the opportunity for profit and loss as the two “core factors” carrying more weight than the others. Consequently, that greater emphasis makes it easier for businesses to classify their workers as independent contractors and avoid the greater cost employees present. The DOL’s new Proposed Rule represents a return to a worker classification model favoring a broader scope of considerations where no one factor is determinative, and all factors must be considered as a whole. The DOL suggests this approach better aligns with the FLSA’s purpose and the courts’ FLSA interpretation. 

The Potential Impact of the Proposed Rule

The Proposed Rule will allow for more circumstances where workers should be classified as employees; therefore, companies will have less flexibility in designating workers as independent contractors. In short, by expanding the definition of employee, the Proposed Rule increases the risk that some workers may soon be wrongfully classified under federal wage and hour law. Whether a worker is eligible for protections afforded only to employees may soon require a deeper dive into the working relationship between a worker and an employer to avoid costly litigation. In the end, employers may not be able to retain every reclassified worker, and for workers who want to maintain their independent contractor status, reclassification may lead to hard choices.

NFL Player Tyrod Taylor Sues San Diego Chargers Team Doctor for Medical Malpractice

Tyrod Taylor is Still Playing in the NFL, So Where’s the Foul Play?

It’s all about past and future earnings. The rib injury and subsequent punctured lung sidelined Taylor for the remainder of the 2020 season. And though Taylor was picked up as starting quarterback for the Texans in 2021 and is currently under contract with the Giants, Taylor claims he suffered a big payday loss as the result of Gazzaniga’s negligence because it cost him his position as starting quarterback for the 2020 season, just before he was scheduled to become a free agent. 

“The economic difference between a starting quarterback’s salary and a back-up quarterback salary is at least $5 million and is more than likely much greater,” the complaint says. Determining earnings, and therefore damages, can be complicated in cases involving professional athletes. The exact amount of Taylor’s past and future loss is not yet known.

The trial was set to start in Los Angeles in November but has been moved to next June to allow the current NFL season to play out.

Tyrod Taylor may have played through the pain after suffering a rib cartilage injury during the Chargers season opener against the Bengals, but he didn’t leave it all on the field. Now, he’s bringing it to court. Taylor is suing Chargers’ team doctor David S. Gazzaniga for medical malpractice based on a botched nerve block injection Gazzaniga administered minutes before Taylor was set to take the field as starting quarterback against the Kansas City Chiefs on September 20, 2020, a week after his initial rib injury. In the suit, Taylor alleges he suffered “severe physical pain resulting in hospitalization, physical therapy, emotional distress and other past pain and suffering” at the hands of Dr. Gazzaniga. Taylor is seeking at least $5 million in damages.

Unnecessary roughness, perhaps, given Taylor’s attorneys are also accusing the doctor of “medical battery.”  

Rib injuries really hurt and tend to significantly limit range of motion, so pain killing nerve block injections are commonly used to keep players on the field, throwing, twisting, turning, and tackling ‘til the end. What isn’t so common is accidental lung puncture during the procedure, which is what happened to Taylor. 

While the procedure has a very high success rate, there are risks associated with the injection due to the intercostal nerve’s extremely close position to the lung. Even a slight slip of the hand or miscalculation can extend the needle into the lung, causing it to collapse. Once his lung was punctured, Taylor was out of commission.

What Does Taylor Have to Prove Off-Field?

An unsatisfactory treatment outcome isn’t enough. It must result in harm and real, compensable damages. The central questions will be whether Dr. Gazzaniga treated Taylor by using the skills and knowledge that is the standard of care for Taylor’s injury and if not, what harm did the standard of care violation cause? 

Whether Dr. Gazzaniga had the benefit of imaging guidance during the procedure or the injection was administered blindly by pushing on the skin to find the rib and the landmark to localize where to inject the medicine is unknown but is likely important to the standard of care issue. 

Informed consent will also be an important aspect in the case. According to Taylor’s attorneys, he “did not have proper and accurate informed consent prior to the anesthetic injections.” There are risks with any procedure, and doctors have a duty to discuss specific risks, including complications that may occur. Evidence or lack of it regarding Dr. Gazzaniga’s advance notice of the risks to Taylor and Taylor’s consent to the pain blocker injection will likely impact the case.

If Injury Comes with NFL Territory, Why is Dr. Gazzaniga Getting Flagged? 

Private Security Officer Receives First Fallen Hero Award 

A significant milestone in the effort to cultivate a fully synergistic relationship between private security and public law enforcement occurred on July 11, 2012 at the Florida Police Chiefs Association’s 60th annual Summer Training Conference and Exposition held at the Harbor Beach Marriott Resort in Ft. Lauderdale, Florida.  

Critical Intervention Services Protection Officer Mathew Little, who was killed in the line of duty on May 16, 2011, was honored with the Fallen Hero Award by FPCA President Chief Paul Sireci. The event set new precedent as it marks the first instance of a private sector officer to receive the important honor.

The inclusion of a fallen private security officer as a recipient of this high honor is representative of the strides the private and public sectors have made over the years to overcome their conflicts and collaborate for the benefit of the common goal of public safety. Gone are the days of contention arising from separate missions and welcomed still more is the exchange of mere co-existence for an emerging collaborative relationship that will only serve the best interests of people and public safety. 

It is a harsh reality the sacrifices that public safety professionals have made and the dangers they face. Both private and public officers put their lives on the line every day to protect the people of this great state. Honoring Mat’s contribution to that utmost goal is a tribute by law enforcement to all of the private security industry.  

With continued efforts such as this event, we are certain to wholly bridge the gap, growing the private-public relationship from co-existence to cooperation to partnership.

Growing the Public-Private Relationship

The Fallen Hero Award is the FPCA’s highest recognition of the ultimate public safety sacrifice. Until now, the Fallen Hero Award has only been bestowed on law enforcement officers that were killed in the line of duty. The award was given as part of the FPCA’s Private Security Partnership Committee Awards which were established in 2011 as a means for the FPCA and the Private Security Partnership Committee to annually recognize public-private partnerships.  

According to the FPCA, to be considered for the Fallen Hero Award, the honored security officer must have died in the line of duty while performing authorized security functions for his employer or employer’s client. When he lost his life to a spiteful bullet, Office Little was indeed doing just that – patrolling a troubled community in St. Petersburg and protecting its residents.

What is the Fallen Hero Award?

In attendance at the presentation ceremony were an estimated thirty police chiefs from across Florida. Chief Paul Sireci presented the Fallen Hero Award to Officer Little’s family and offered praise to Mat and the private security industry. “While we have two missions, we share one common goal of public safety,” he said. He also respectfully acknowledged that law enforcement is outnumbered by those in the private protection industry by 3 to 1, a truth that legitimizes the crucial role the private sector plays in safeguarding not only the public, but critical infrastructures that we rely upon for our well-being.  

The audience responded with a standing ovation. It was an emotional moment as the family stood to accept the award and a commemorative plaque and deliver a note of appreciation and love for Mat. Afterward, attendants adjourned to a beachfront deck and enjoyed food and spirits and toasted Mat, glasses raised against the backdrop of a captivating Florida sunset.

The Presentation and Profound Words

Parents of Deceased Girl Sue Hospital and Critical Care Professionals 

The tragic death of a seven-year-old Clark County girl under the care of a team of emergency medical professionals at a Las Vegas hospital in early 2019 has prompted the girl’s parents to file a medical malpractice suit against a host of defendants. 

The defendants will file their respective responses and may assert defenses. The case will then go into the discovery phase where the parties will seek records and information related to the case. For now, all questions about Briana’s death remain unanswered.  

The Waiting Game Begins

In the complaint filed by her parents, Diamond Rose and Brian Bradford, allegations are launched against the treating facility, at least four pediatric and critical care specialty doctors, and eleven nurses. The details portray an alleged case of extreme dereliction of duty and stark absence of appropriate hospital protocols. 

The Defendants

On February 16, 2019, Briana Bradford was taken to Summerlin Hospital Emergency Department with lower right-side stomach pain, nausea, and vomiting.  Thirty-five hours later, on February 18, 2019, Briana died from a septic infection originating in her abdomen. According to the complaint, what did not transpire during that time but should have, resulted in Briana’s death just ten days after she celebrated her seventh birthday.

Background

The allegations against Summerlin Hospital Medical Center, its associates, and their medical professionals are alarming. Briana’s initial lab results, coupled with her acute symptoms and abnormal vital signs, were indicative of severe acute illness. Rather than initiating a sepsis or other acute emergency protocol and admitting Briana directly into the Pediatric ICU, the complaint alleges she was instead sent to the pediatric floor where she waited for hours with no recorded care at all, her white blood cell count more than twice the high end of the normal range for a child her age. Not only were antibiotics not administered until 20 hours after her admission, her parents claim, but the wrong antibiotic was chosen. 
 
The allegations don’t get any easier to read: insufficient fluids given, no infectious disease consults, no pediatric surgery consults, no exploratory surgery to find the source of infection, no record of communication between the doctors, and a ten-hour delay in obtaining CT imaging.  

Allegations of Extreme Negligence

NLRB Imposes Limitations on Internal Investigation Workplace Policies

With the release of another controversial decision by the National Labor Relations Board, employers are again struggling to make sense of limitations imposed on their internal workplace policies.

While this controversial decision is being challenged, employers are left to figure out how to navigate the now more perilous waters of internal investigations.
Consistent with the NLRB decision, employers should review their policies and practices governing internal investigations for blanket instructions to employees regarding communication during an investigation. 

If an employer launches an investigation, determining whether confidentiality is necessary should be done in contemplation of the four factors identified in Banner Health, and the employer’s rational for any directive to employees should be thoroughly documented. Employers should also consider the importance of the initial speed of an investigation to curtail risks of witness contamination, evidence tampering, fabrication, and other concerns. 

Employers should seek the advice on an employment law attorney should any questions regarding compliance arise. 

What Should Employers Do?

The NLRB’s decision in Banner Health System targets workplace investigations and prohibits an employer from requesting participating employees not discuss a workplace misconduct investigation until the employer has first determined there is a need for confidentiality. The otherwise common practice of instructing employees to keep an investigation confidential is now subject to consideration of whether:

  • Witnesses need protection
  • Evidence is in danger of being destroyed
  • Testimony is in danger of being fabricated, or
  • There is a need to prevent a cover-up

The Banner Health System Decision

The matter fell into NLRB hands after an administrative law judge deemed the standard procedure acceptable because it served the legitimate business purpose of protecting the integrity of an investigation. 

The case involved a hospital employee who was disciplined for insubordination after he, out of concern for patients’ well-being, refused a supervisor’s order to sterilize surgical instruments with hot water from a coffee machine when the hospital’s steam system failed. 

The employee was asked not to discuss the investigation with his co-workers. The employee filed an unfair labor practice charge against the hospital claiming that the request for confidentiality violated his right to discuss workplace conditions with other workers. 

Background

The presiding judge ruled in favor of the employer, and the employee appealed to the NLRB, who determined that the hospital’s “blanket approach” to the issue was overbroad and established the new prerequisite to the routine instruction. 

Concerns voiced over repercussions of the ruling include the chilling effect it may have on victims and witnesses as well as the limitations it may impose on an employer’s ability to make key credibility determinations, conduct focused investigations, and serve the interests of itself and its employees by stopping workplace misconduct. 

A Double-Edged Ruling?

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