The Dynamex Decision Takeaway: Why Hiring Independent Contractors Is Now an Increasingly Risky Business
Given the “more nuanced” definition of “employee” and “independent contractor” in California’s Dynamex Operations West Inc. v. Superior Court, employers, brokers and carriers should carefully audit their payrolls to make sure they do not misclassify workers as independent contractors under Dynamex’s new wage order standard, said John McGowan, Jr., partner, BakerHostetler.
Misclassification can introduce a host of risks, he said, including lawsuits, back taxes, wage payment liability, penalties and fines — and nasty surprises when insurance policies don’t respond as expected.
With the Dynamex decision, California joins Massachusetts and New Jersey in adopting the ABC test, which slashes the number of workers eligible for independent contractor status. Under the test, a worker is considered an independent contractor only if A, B and C are satisfied:
A) The worker must be free from the control and direction of the payor in connection with the performance of the work, both under the contract and in fact.
B) The worker must perform work that is outside the usual course of the payor’s business.
C) The worker must be customarily engaged in an independently established trade, occupation or business of the same nature as the work performed by the worker for the payor.
Dynamex Operations West’s delivery drivers claimed they should be classified as employees, not independent contractors. The superior court agreed, and it ruled against Dynamex in April 2018.
According to the Economic Policy Institute, 10 to 20 percent of employers misclassify at least one employee because of ambiguous laws, prompting greater adoption of the ABC test in other states.
Why Dynamex Matters to Insurance
The Dynamex decision changes the way carriers view independent contractor exposure, said Aileen Smith, vice president, Bermuda professional liability, Allied World, and prompts questions from the underwriting side.
“For employers with a large independent contractor base, we want to know that they have a good understanding of their worker base and that they’re conducting audits around worker classification” to stay compliant, Smith said.
Brokers should know how much their clients use independent contractors so they can properly point out risk exposure and advocate for risk solutions with carriers, said Michaelene Cody, vice president and policyholder counsel, HUB International. “It’s our job to explain why our client is different, how they’re reducing exposure and why the exposure isn’t as big as people feared.”
Wage-and-hour claims are typically excluded from standalone EPLI and casualty insurance policies, said Smith, although some London- and Bermuda-based markets have offered wage-and-hour risk transfer products since 2012.
Although the Dynamex decision is narrowly confined to wage orders, which address working conditions and wage entitlement, different tribunals treat the employee-or-independent contractor question very differently, said Linda Pierce, vice president, Gallagher, and the issue is far from resolved.
For example, she said, employment status is an issue in determining unemployment benefits and workers’ compensation in state tribunals. It’s an issue in determining eligibility for participation in ERISA plans in federal tribunals, and it comes up in vicarious liability cases involving third-party claims where a worker caused an injury.
In California, independent contractors have standing to sue an employer for unlawful harassment, and they may allege to be employees for purposes of claiming they have been discriminated against, Pierce said, “so you want a definition of who can bring a claim to be as broad as possible.”
California’s court of appeals has heard several related cases since the Dynamex decision, including one involving a claim of joint employment status, which the court rejected. Although it’s a narrow decision, said Cody, confined for now to wage orders, “that doesn’t mean at some point it won’t be broader.” She expects future litigation around the scope of the Dynamex decision.
Cody recommends retaining outside counsel familiar with the kinds of issues that can arise from worker misclassification and taking “a proactive approach”— auditing the worker base and ensuring “solid, well-drafted contracts” — to determine and preempt risk exposure early on. “It will help on the back end,” she said.
If Assembly Bill 5, introduced by a democrat, is codified by the democratic-leaning state, “it will apply to worker classification, and therefore workers’ compensation.” — Matt Zender, senior vice president, WC product manager, AmTrust Financial Services
If Dynamex becomes the standard, added Matt Zender, senior vice president, WC product manager, AmTrust Financial Services, the population of “employees” will inevitably expand, resulting in more covered employees and expanded premiums. Losses will scale to the larger covered population, but the expense load from premiums will increase business costs, which employers will pass along to their customers.
“Will this increase the cost of goods and services?” he asked. “It will have to.”
As California Goes, So Goes the Nation?
Although Dynamex applies only to California and solely for work order purposes — not workers’ compensation, employee benefits, tax treatment or ERISA — the insurance community, including carriers that offer wage-and-hour coverage, should take notice, said Smith, because “a lot of state legislatures follow the lead of California.”
To companies in Iowa, for example, she said, “pay attention. Even if you’re not using independent contractors today, you may in 16 or 18 months.”
Because the standard of worker protection is so high in California, she said, “a lot of our insureds who operate in California and other jurisdictions typically roll California’s standards across the other jurisdictions.” That way, “if a large claim were ever brought against them, they’ll have defenses in place.”
Other states currently use the ABC test for determining unemployment compensation. Depending on how California’s state assembly votes on two current bills, said Zender, it may yet apply to workers’ compensation. If Assembly Bill 5, introduced by a democrat, is codified by the democratic-leaning state, “it will apply to worker classification, and therefore workers’ compensation.”
So far, Zender said, no federal standard exists to define who is an employee and who is an independent contractor, although the National Labor Review Board determined last year in Velox that employers violate federal labor law when they misclassify employees as independent contractors. That case involved a former driver’s unfair labor practice claim against a medical courier service. Twelve state attorneys general joined an amicus brief supporting the decision.
So Who Is an Employee?
Identifying who is an employee and who is an independent contractor is easy at the extremes, as when the employer exercises direct supervision and exerts a lot of control over the worker’s hours and processes, but “it gets complicated when you dabble in the middle,” said McGowan.
For example, said Zender, take Isha, a software engineer hired as a full-time independent contractor to perform a specific task at a software company — her only employer. If she’s performing software work on its phone network software or some part of the company that is not core to its operation, then maybe she is an independent contractor under the ABC test, said Zender.
But if she’s a server maintenance engineer for WeMaintainServers.com, then she’s an employee under the B part of the ABC test.
And consider Doug, a rideshare driver who picks up commuters from the airport every weekday morning and spends his afternoons running his own mobile phone repair business, his primary source of income.
The nature of the company that sends him rides determines if he’s an employee. The fact that his primary income derives from his mobile phone repair business isn’t a factor, said Zender. “If it’s Airport Shuttles R Us, he’s probably an employee.”
But if it’s Uber, which has successfully argued so far that its core business is technology and not transportation, then no, he’s not an employee under the B part of the test, said Zender.
“You particularly want to understand your client’s workforce as society moves more into the gig economy,” said Pierce, “The generation of people in their twenties like flexibility. These are interesting times.” &