Furthermore, a rose by any other name . . .

. . . may also bring a visit from the tax man (or woman).  Or the labor board.  Or a process server.

My previous “Rose By Any Other Name” posts have been about (a) misnamed/unnamed insureds and (b) contracts (verbal vs. written).  This post is about independent contractors who are really employees (at least, as far as the federal and state tax authorities are concerned), and other “thorny” employee classification issues.

At this time of rising State and Federal deficits, there seems to be an increased scrutiny of how small and medium sized businesses are classifying their workers.  In addition, attorneys who represent workers before the Labor Board seem to be experiencing an uptick in business, commensurate with rising unemployment.  This is strictly based upon anecdotal evidence (I’m receiving more calls from business owners on the receiving end of employee pay and benefit claims), but my suspicion is that such claims, as well as tax enforcement proceedings, are on the rise and will continue along that trend for some time to come. 

Proper classification of workers as independent contractors or employees (and if employees, as temporary, part-time or full-time and as exempt or non-exempt) can mean the difference between financial survival or failure, particularly for a small business, and small business owners, who do not have their own HR staff, are often the least equipped to make these determinations.  Failure to properly classify employees can leave a small business vulnerable to claims for legally mandated employee benefits such as workers’ compensation and unemployment benefits, for discretionary benefits such as health insurance and paid time off, and for back overtime pay.  Properly classifying employees is particularly difficult for small businesses with fluctuating staffing needs, since it is easy for a busy small business owner to forget to reclassify a temporary employee who becomes permanent, or a part-time employee who becomes full-time.   

The solution?  Well, my instinct as a lawyer is this – put it in writing, and keep it in writing.  Even temporary workers could be given something in writing that makes it clear that their status is temporary, with an approximate time limit.  Then calendar the end of that time limit, as a reminder to revisit the issue of how that worker should continue to be classified.  And even small businesses should have a written personnel policy to point to when your employee classifications (or other employment practices) are questioned.       

More dangerous than a misclassification of an employee is the improper classification of a worker as an independent contractor.  Such a misclassification leaves the employer vulnerable to back payroll taxes and penalties as well, which can be substantial enough to put you out of business.  And, whether a worker should be classified as an independent contractor or as an employee can be a particularly tricky determination for a small business owner to make, since the criteria for independent contractor status used by the IRS, the federal Department of Labor and state labor departments don’t all impose exactly the same standards. and are not “exact” but, rather, are open to some interpretation.  Even large companies, such as Microsoft and Federal Express, have been the subject of expensive enforcement actions alleging misclassification of workers.  The new targets for such actions appear to be small businesses, and I’m sure that has alot to do with the fact that they are the most likely to be mistakenly misclassifying their staff.    

The solution?  Again, my instinct is to put it in writing.  As far as I am concerned, a written contract is absolutely essential.  Even with a written contract, however, treating the independent contractor as an employee may indeed make the contractor an employee, whether that’s what you intended or not.  For an explanation of how the IRS analyzes these issues, see IRS Publication 15A.   

Finally, years ago one of my community association clients learned the hard way that even with no employees it still needed workers compensation insurance.  That is because California’s Labor Code provides that one who hires a worker to perform work requiring a license is that worker’s employer if it turns out that the worker doesn’t have the required license.  (It may shock you to hear that sometimes unlicensed contractors lie about their unlicensed status and either provide a fraudulent contractor’s license number or “borrow” another contractor’s license number.)  The association hired an unlicensed contractor, one of the contractor’s employees was injured, and the association was on the hook, with no workers compensation insurance and with a workers compensation exclusion in its commercial general liability insurance policy.  To get a better feel for how California’s Workers’ Compensation Appeals Board analyzes the issue of employment status, take a look here

The solution to this problem?  Legal liability risk management, plain and simple.  A good insurance broker and an attorney to prepare the association’s own contracts, requiring contractors to maintain appropriate licenses and insurance coverage, would have been a big help.

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What to Do if You’re Sued? I Couldn’t Have Said it Better Myself . . .

. . . so I won’t.  Instead, I’ll direct you to this blog post, So Your Business Has Been Sued:  Now What?  It provides an excellent general overview of the steps to take should your business be sued, to which I would like to add the following.

First, while a lawsuit may sometimes take a business owner completely by surprise, there are often plenty of warning signs that a lawsuit may be on its way.  A demand letter from a vendor, subcontractor, customer or client, for example, may include the threat of litigation should an issue not be resolved.  As explained in the referenced blog post, it is important to notify your insurer(s) when you are served with a lawsuit, but it may also be important to notify an insurer of threatened legal action even before you are served.  This is particularly true if the insurance policy in question provides coverage on a claims made basis (such as an errors and omissions policy).  Engage counsel early to advise not only when to notify your insurers, but how.  On this point, I must say that I disagree with the cited blog post’s advice that you should be relying on your insurance broker to determine whether there may be insurance coverage, and to handle notifying your insurer(s) of the lawsuit.  Your attorney should be making the coverage analysis.  And, regarding the “how” of tendering a claim or suit to an insurer for defense, sending it to your broker may not constitute notification to the insurer (unless your broker is the insurer’s agent – and agents and brokers are not the same thing), and may not satisfy your insurance policy’s notice provisions and requirements.

Something the cited blog post doesn’t mention is what you can expect your insurer’s response to be.  Upon notifying an insurer of a claim made or lawsuit filed against you, you will at some point receive a letter from your insurer explaining the coverage your insurance policy may provide for your defense, and any qualifications or limitations there may be on that coverage.  Attorneys call this a reservation of rights letter, although the insurance company will most likely not put that at the top of the letter.  Instead, you will receive a relatively lengthy letter from an in-house claims representative or coverage attorney, or from your insurer’s outside legal counsel (in other words, a letter on legal letterhead).  Receipt of such a letter is a “heads up” to you that the insurer is contesting coverage.  Don’t ignore a reservation of rights letter, because it is a genuine “red flag”.  Instead, consult an attorney with knowledge about insurance coverage, to determine if there are grounds to disagree with the position your insurer has taken, and to decide what steps should be taken if there are grounds for disagreement.  This is important, for several reasons.  First, while generally the insurer has the right to pick your defense attorney, control the defense, and determine whether to settle the case and if so for how much, the insurer’s reservation of rights may give you important rights to select your own defense counsel and control your defense (attorneys in California refer to this as Cumis rights).

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You can’t buy a box of insurance . . .

insurance policy

. . . no matter what that annoyingly “chipper” woman in the Progressive® advertisement says. 

Insurance coverage (particularly commercial lines – all of the various insurance policies which cover business organizations) is not a standard commodity.  To the contrary, commercial insurance policies are complex contracts comprised of declarations pages, coverage parts, covenants, conditions, exclusions, endorsements and schedules.  It is not unusual for a commercial insurance policy for even a modestly sized business to be in excess of one hundred pages long. 

The interpretation and application of the provisions of commercial insurance policies is the subject of millions of pages of articles, treatises and court decisions.  Notwithstanding this, what the particular provisions of such policies mean is the subject of litigation in every legal jurisdiction, and will continue to be, as these complex legal documents change over time to address emerging risks and liability theories. 

 In addition, while many of us purchase our personal lines insurance policies (for our homes and automobiles) directly from insurance companies through their agents, commercial policies are typically purchased through insurance brokers.  The distinction between an insurance agent and an insurance broker, and what that distinction means for the insured (or prospective insured) is a topic the thorough explanation of which would itself require a treatise.  Suffice it to say that generally speaking the law does not permit the insured to rely on representations made by a broker regarding the coverage provided by a commercial lines policy to the same extent that the insured may rely on an agent’s representations to bind the insurer. 

In a nutshell, as opposed to the insured who is a “consumer” of a personal lines policy, an insured under a commercial lines policy is generally expected by the courts to have a more sophisticated understanding of the insurance contract.  Given the high stakes involved (in terms of the potential economic impact of an uncovered loss or claim), large business organizations retain their own in-house risk management professionals to, among other things, understand and maintain the complex “web” of their insurance policies.  It behooves smaller organizations, which generally do not have their own in-house risk management personnel, to consult with an outside insurance coverage expert periodically, particularly when considering changing insurers or policies.

When was the last time you actually read your insurance policies in their entirety?  In my experience, most of my clients have never done so.  That is not a criticism.  Since insurance coverage is generally not their “business”, they hire me to do that, so that they can do what is their business.  In fact, some of my clients are other attorneys whose law practice does not include insurance coverage analysis. 

My smartest clients are the ones who know what they don’t know.

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