Misclassifying Independent Contractors

July 26 2007 - A recent hearing of the House Education and Labor Committee into "Misclassification of Workers as Independent Contractors: What Policies and Practices Best Protect Workers?" heard testimony from Society for Human Resource Management member and employment law attorney Christine Walters who called for urgent clarification and guidance to assist employers through a multiplicity of confusing statutory and agency regulations when classifying workers as employees or independent contractors.

Christine Walters said:

"Every new working relationship brings with it the challenge of asking the right questions to ensure the employment situation is being properly classified as an employee or non-employee worker. In my experience, employers do on occasion unwittingly, misclassify employees as independent contractors."

Her testimony highlighted a 21st century work environment characterized by:

• part-time employment
• flex-time and telecommuting schedules
• leased employees
• direct-hire employees
• agency temporaries
• per diem workers, and
• independent contractors

Statutory jurisdictions covering independent contractors include:

• the Family and Medical Leave Act
• the Americans with Disabilities Act
• the Internal Revenue Code
• the Fair Labor Standards Act
• the National Labor Relations Act, and
• individual state unemployment insurance codes.

Christine Walters continued:

"Joint guidance from the various agencies on the classification of employees would greatly assist employers in complying with the law. Secondly, increased and targeted education should be combined with increased and targeted enforcement."