AGC Provides Training to Help Contractors Avoid Worker Misclassification Liability
Several new laws and enforcement initiatives pose challenges for employers seeking to control costs in a difficult economy. While many employers rely on independent contractors and exempt employees as a legitimate method of minimizing human capital costs, many circumstances must be considered when classifying workers as independent contractors or exempt employees to avoid legal pitfalls. AGC's two-part webinar series, "Worker Misclassification: What Every Contractor Needs to Know," provided training for contractors on these topics and is now available for purchase in AGC's online bookstore.
The first part of the series focused solely on misclassifying employees as independent contractors. HR consultant, Kathy Albarado of Helios HR partnered with tax consultant Laurence C. Rubin of Aronson & Company and employment law attorney David Whitlock of Elarbee Thompson LLP to help construction employers determine the appropriate means of identifying independent contractors from the perspectives of both the Internal Revenue Service and the U.S. Department of Labor. Specific attention was given to the various tests that are used to make such determinations, common "red flags" that employers should look out for, enforcement initiatives, consequences of misclassifications, and the steps needed to correct any misclassifications that are identified during a self-audit.
Kathy Albarado again partnered with employment law attorney and Fair Labor Standards Act (FLSA) expert Tami Earnhart of Ice Miller LLP for the second part of the series on misclassifying employees as exempt under the FLSA rather than non-exempt, and shared with contractors the top three FLSA concerns for construction contractors. Each of the FLSA exemptions (i.e. executive, administrative, professional, learned professional, sales, computer-related and highly compensated workers) was also discussed in detail with a specific focus given to "grey areas" that exist in the construction industry, including the classification concerns for field supervisors and project superintendents. Some other areas discussed include waiting, travel, on-call and training times, meal and rest periods, and time spent receiving medical attention or complaining.
Both sessions provide modern examples and court cases related to the construction industry and offer suggestions for "best practices," including tips for conducting self-audits.
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