Independent Contractor Classification: Regulatory Updates; Drafting Agreements to Mitigate Client Risk
Recently Revised NLRB and DOL Standards, Differing Federal Definitions, Stringent State Laws

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Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Employment and Workers Comp
- event Date
Wednesday, July 17, 2024
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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Live Online
On Demand
This CLE course will prepare employment counsel to structure independent contractor agreements that help minimize exposure to misclassification claims. The panel will unravel the complicated legal framework with differing and overlapping federal law definitions for independent contractors versus employees. The panel will also discuss litigation updates and developments in federal, state, and local laws impacting the drafting of independent contractor agreements, and offer counsel best practices for drafting agreements to mitigate risk.
Faculty

John exclusively represents employers on all labor and employment matters and regularly handles wage and hour matters involving federal and state laws, such as the Fair Labor Standards Act, the New York Labor Law, New York’s Miscellaneous Industries Wage Order, and New York’s Hospitality Wage Order which includes numerous cases involving New York’s Wage Theft Prevention Act, tip credits and pooling, deduction from wages and regular rate issues. John also routinely works with the Occupational Safety and Health Act, in addition to handling discrimination and retaliation claims, ADA public accommodation cases, drafting employee handbook policies and executive employment contracts, non-competes, and conducting workplace harassment and discrimination investigations. John has defended a wide range of employers against hybrid class and collective actions under the FLSA and the New York Labor Law with exemption misclassification and off-the-clock claims. He also frequently assists companies with internal wage and hour audits, as well as Department of Labor audits, including those generated by misclassification of independent contractors. John also has extensive experience with assisting businesses with internal safety and health audits, responding to OSHA and state-sponsored OSHA complaints of workplace safety and health and retaliation, and resolving and contesting OSHA citations, including but not limited to fatality investigations as well as defending against claims of retaliation under various OSHA statutes and New York’s Workers’ Compensation Law. John also routinely appears before the EEOC, the New York State Division of Human Rights, the New York City Commission on Human Rights, and the Connecticut Commission on Human Rights and Opportunities. As a former trial attorney with the U.S. Department of Labor, Office of the Solicitor, John prosecuted numerous FLSA and OSHA cases and was part of a litigation team that recovered approximately $4 million under the FLSA on behalf of New York State Environmental Conservation Officers. While at the Department of Labor, he also received a commendation from OSHA’s Regional Administrator for his prosecution of a discrimination complaint under the Surface Transportation Assistance Act. John serves as the co-chair of Cozen O'Connor's OSHA-Workplace Safety Practice and is also the author of its safety and health blog, theOSHA Chronicle.John is a founding member of the Wage and Hour Defense Institute, and he frequently lectures on FLSA, OSHA, and Labor Department audits. He has also taught business and employment law at the Pratt Institute and the New School. John also writes extensively on labor and employment law. He served as the co-editor of the American Bar Association Labor and Employment Law Section (Section) electronic newsletter from 2015-2019 and is the former vice-chair of the Member Engagement Committee of the Section. He was a contributing editor toThe Fair Labor Standards Act, 2002-2005, Cumulative Supplement, published by BNA Books, and has served on its editorial board since 2006. John is also serving as a chapter editor for theOccupational Safety and Health Law, Fourth Edition published by the ABA and Bloomberg Law. John is frequently asked to comment on labor and employment issues and has been quoted extensively in the Long Island Business News, Bloomberg Law, the San Francisco Chronicle, SHRM, CNBC, MSNBC, Forbes, Newsday, the Daily Labor Report, and the Employment 360 and has been published in the New York Journal and USA Today (the magazine), among other publications. John has been named a New York Metro Super Lawyer since 2014 and Best Lawyers in America since 2019. John has also appeared on CNBC’s Squawk Box and been interviewed by several news stations, including PIX11 and NPR’s Marketplace Morning Report. John is also a frequent panelist and contributor on OSHA and Wage and Hour issues before the American Bar Association, New York State Bar Association, New York City Bar Association, Practicing Law Institute, and LawLine.

Mr. Langhammer has over 35 years’ experience representing clients in all aspects of employment law and related litigation, including wage and hour class actions, Private Attorneys General Act (PAGA) claims, Fair Credit Reporting Act (FCRA) claims, and suits involving wrongful termination, discrimination, harassment, and retaliation, breach of contract and unfair business practices, and misappropriation of company trade secrets and proprietary information. He also counsels clients on a wide range of employment law matters, conducts wage and hour compliance audits and reviews, drafts employment policies and procedures, and provides human resources training. Ed represents corporate and business organizations, as well as nonprofit and charitable entities.
Description
The classification of workers as independent contractors rather than employees continues to be under intense government scrutiny at the federal and state/local levels. The U.S. Department of Labor (DOL) and National Labor Relations Board (NLRB) recently reestablished more stringent federal standards for determining whether a worker may be classified as an independent contractor, making it more difficult for businesses to use this designation without increased risk of agency enforcement actions.
States and localities are also stepping up efforts to protect independent contractors. Several states such as California, Massachusetts, Illinois, New Jersey, and Maryland have their own strict laws in addition to federal standards. Additionally, New York State recently enacted the Freelance Isn't Free Act, effective May 20, 2024, that mirrors New York City's law and requires all contracts with freelance workers worth $800 or more to be in writing or suffer costly penalties.
Misclassification errors can expose employers to significant liability under state and federal tax and employment laws. Therefore, counsel must understand when to designate workers as independent contractors and how to draft agreements to best protect their clients.
Listen as our panel discusses effective independent contractor agreement drafting techniques to mitigate the risk of misclassification and possible penalties. The panel will discuss how to tailor the agreement to the specific situation; analyze differing IRS, DOL, and EEOC definitions and noteworthy federal and state regulations; and outline key provisions to be included in the agreement.
Outline
- Legal framework and recent regulatory developments
- IRS
- DOL
- EEOC
- NLRB
- State/local law considerations
- New York State's Freelance Isn't Free Act
- Independent contractor agreements
- Inherent limitations
- Key provisions to include
- Provisions to avoid
- Optional provisions
- Practitioner takeaways
Benefits
The panel will review these and other key issues:
- What are the differences in the key definitions pursuant to IRS, DOL, and EEOC guidelines that must be incorporated into an independent contractor agreement?
- What federal and state/local regulations should counsel consider before drafting an agreement?
- What provisions should employment counsel be sure to include in an independent contractor agreement?
- What provisions in agreements have been shown to contradict proving independent contractor status?
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