Be careful that contractor trainings don’t change employment status

Q         Can we require independent contractors to complete the same trainings employees take (e.g., antiharassment or safety training)?

As you may know, there are several different tests under federal and state laws to determine whether a person is an employee or an independent contractor. And satisfying one test doesn’t mean you have satisfied another. The stakes for misclassification can be high because the consequences can include but aren’t limited to lost wages, overtime, health and other employee benefits, stock options, workers’ compensation, and unemployment benefits, as well as civil penalties from the state or federal labor department. Although the many tests are a bit different, they have some common elements and include the employer’s right to control the person’s work, providing tools and materials, and the consequences related to ending the work relationship.

Recently, the U.S. Department of Labor (DOL) proposed a new six-point test for independent contractors, known as the totality of circumstances test, which is effectively a return to the standard for making this important determination that was in place before the previous administration. The six factors proposed by the DOL include: