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Employee v. Independent Contractor - What You Need To Know What is the difference between an employee and an independent contractor? This is an important question and one that business owners and workers must reckon with. Oftentimes, employers will attempt to classify a new hire as an “independent contractor.” This is done to limit exposure under a given state’s worker’s compensation act. Also, if a hire is considered an employee, employees are mandated to withhold income taxes and pay Social Security, Medicare taxes, and unemployment tax on wages. Employers are under no such obligation to independent contractors. This is an issue that raises a number of questions and attempting to answer them is not exactly straightforward. In fact, there are many factors that go into determining how to most effectively address this situation. When courts have weighed in on the “employee versus independent contractor” dynamic, some common factors have become apparent. Control and Relationships - What They Mean And How They Affect You It’s important to note that each jurisdiction has its own statutes and regulations and if you have specific, detailed questions you should refer to a state’s statutes and rules that focus on employment. Regardless, the most common element that all courts look for in these relationships is the right of “control” as to the means and manner of the job. The IRS offers two key points to clarify how to understand the dynamics that define an employee compared to an independent contractor. As we said, the first is control. If the business controls what a person does and then directs how it is done, that is considered a type of behavioral control. Financial control is also a consideration if the business dictates particular aspects of the tasks. That includes Level of instruction Amount of training Degree of business integration Method of payment The furnishing of work tools and other materials Ultimate control over the work environment and where work is completed The right of discharge While this list is by no means exhaustive, it should provide all parties with a firm understanding of the factors which go into an independent contractor/employee relationship determination. A second factor is the relationship between the two parties and any contractual obligation or benefits associated with the employment. The factors, for the type of relationship between two parties, generally fall into the categories of: Written contracts Employee benefits Permanence Services provided Again, this is not a definitive list, but it should offer some clarity in terms of an established relationship between an employee or independent contractor and their employer. If you have any questions about your status as an employee or independent contractor, please contact our team today. The law firm of Barkan Meizlish DeRose Cox, LLP is over sixty years old, with a national practice, focused on wage and hour/overtime litigation, Ohio workers’ compensation, Social Security Disability, and personal injury / medical malpractice. Our law firm and individual law firm members appear on lists of the best law firms and attorneys in the nation.

Last week, law firms Barkan Meizlish DeRose Cox, LLP and JTB Law Group, LLC filed a class and collective action against S & E Flag Cars, LLC (“S & E”), a Kentucky limited liability company in the race track operations business.  The lawsuit, Perkins et al. v. S & E Flag Cars, LLC et al., was filed in the United States District Court for the Southern District of Ohio as a class and collective action on behalf of all non-exempt current and former employees of S & E over the past three years.  Under Ohio and federal wage and hour law, nonexempt employees must be paid at least the minimum wage for all hours worked, plus overtime pay at a rate of one and one half times the regular rate for hours worked in excess of 40 in a workweek.  The Complaint asserts that S & E violated the Fair Labor Standards Act (“FLSA”) and the Ohio Minimum Fair Wage Standards Act (“Ohio Wage Act”) by failing to pay Plaintiffs overtime compensation at a rate of one and one half (1.5) times their regular rate of pay.  Plaintiffs seek to recover monetary damages, liquidated damages, and costs, including attorney’s fees, for themselves are all others similarly situated. Barkan Meizlish DeRose Cox, LLP focuses on wage and hour litigation, workers’ compensation, Social Security disability, and personal injury/medical malpractice.  Over the past fifty years, Barkan Meizlish DeRose Cox, LLP has represented the rights of working people on and off the job through representation of labor unions, individual employees, and the injured and disabled.  The lawsuit was filed by attorney Bob DeRose ( bderose@barkanmeizlish.com).  Learn more at www.barkanmeizlish.com, or visit our Facebook page at https://www.facebook.com/pages/Barkan-Meizlish-Handelman-Goodin-DeRose-Wentz-LLP/197862930238456.

Workers frequently work over 40 hours a week in this rapidly growing industry, sometimes even up to 100 hours per week. With much of the work sub-contracted out to smaller companies, the structure of the oil and gas industry certainly makes it “an industry ripe for noncompliance,” as stated by Dr. David Weil, administrator of the Wage and Hour Division. Investigators for both state and federal government agencies have specifically targeted this industry over the past few years.  By August of last year, the Department of Labor’s investigations resulted in over $13 million in back wages to over 9,100 employees. There are numerous jobs in this industry that may be entitled to overtime pay, including compressor operators, roustabouts, pumpers, directional drillers, service supervisors, oilfield delivery specialists, rig operators, instrument fitters, electricians, mechanics, and truck drivers. Employers can use many different tactics to avoid paying the required minimum wage and overtime pay to employees.  You should be aware of 3 common violations: 1. Misclassification. One major issue facing oil and gas workers is misclassification—where employers treat full-time nonexempt employees as independent contractors to avoid the overtime obligations under the FLSA. Keep in mind that your day-to-day job duties and actual employment relationship determine whether you are exempt from overtime pay, not your job title.  To make this determination, courts will look to: the degree of control your employer exercises over you, the skill required for your job, whether the services you provide are an integral part of the overall business, and your investment in any materials or equipment. 2. Travel time. Workers will often travel from drill site to drill site   For example, employees working in the field may be required to report to a central office location at the beginning and end of each shift, but travel to various assignment locations throughout the day. These employees should be compensated for all travel from the time they leave the central office location until they return at the end of their shift. 3. Day-rate plans. Workers paid on a day rate basis receive a flat rate per day, regardless of the number of hours worked.  But this does not eliminate your employer’s obligation to track hours or pay overtime compensation—this common method of payment may still violate the FLSA if nonexempt employees do not receive time-and-a-half for hours worked over 40 a week. Questions? Learn more at www.barkanmeizlish.com. Unpaid Wages Attorney Columbus Ohio Source: WHD News Release, US Labor Department helps more than 5,300 Pennsylvania and West Virginia oil and gas workers recover $4.5M in back wages for unpaid overtime (Dec. 9, 2013) http://www.dol.gov/opa/media/press/whd/WHD20141883.htm

The underlying principle of temporary total disability compensation is that the employee’s departure from the workplace must be causally related to the industrial injury for the employee to be eligible to receive that type of compensation. State ex rel. Rockewell Internatl. v. Indus. Comm., 40 Ohio St. 3d 44, 531 N.E.2d 678 (1998). As such, if a claimant is no longer employed for reasons unrelated to the industrial injury and has not reentered the workforce, he is not eligible for temporary total disability compensation. State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5303, 776 N.E.2d 51. However, just because a claimant has stopped working, does not mean that he or she has voluntarily abandoned his position. Recently in State ex rel. Viking Forge Corp. v. Perry, Slip Opinion No. 2015-Ohio-968, a claimant was injured in September of 2008, placed on light duty in December of 2008, returned to full duty in February 2009, and fired in March of 2009, and allowed to recover temporary total compensation in April 2009. The claimant’s initial doctor returned him to full duty work in February 2009, but in April 2009, the claimant got a new doctor who placed him on restricted duty, and the claimant applied for a period of temporary total disability compensation. Id. This request was awarded, but the employer challenged it. The Tenth District Court of Appeals concluded that the claimant had not voluntarily abandoned his employment and that the new doctor’s findings warranted a temporary total disability compensation award. This decision was affirmed by the Supreme Court of Ohio who ruled that the Industrial Commission passed the scrutiny required by law and properly evaluated the weight and credibility of the evidence presented. The claimant testified that it was another employee who committed the infraction and that his doctor had recently noted changes in his condition. As such, even though the employee was terminated by his employer for allegedly violating rules and his previous doctor had returned him to full capacity, the Court awarded temporary total disability compensation. Source: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2015/2015-Ohio-968.pdf

Can You Collect Unemployment and Social Security? In short, yes you can receive both unemployment and social security disability benefits. Due to the complicated nature of most legal issues dealing with compensation through government funds, this is something that is going to differ on a case-by-case basis. The most common issue we see is claimants trying to receive unemployment while they are waiting for their SSDI claim to be processed, which is something that can take months or even years. Collecting both benefits has become more common during the COVID-19 pandemic but it is still fairly rare. For more information regarding your specific case, you should contact a notable disability lawyer at Barkan Meizlish LLP. What is Unemployment? Unemployment benefits, or unemployment insurance, is in place to reward those who are currently without work but actively searching for it. Unemployment benefits will grant you a predetermined percentage of your most recent income as a way to hold you over while you search for a new job. More information on how to file for unemployment can be found here. What Is SSDI? SSDI is an insurance benefit that people pay into and can make a claim for when they become disabled and no longer have the ability to work. It can take months or years for a claim to be approved which is why people often seek unemployment benefits at the same time. Filing for SSDI can be a lengthy and complex process and should never be faced alone. The disability lawyers at Barkan Meizlish LLP have handled countless Social Security Disability cases and can help you get the benefits that you have already paid for. Can You Apply for Disability While on Unemployment? The first thing you need to understand when trying to decide on your plan of action is that at their core intention, SSDI and unemployment benefits directly contradict each other. When filing for SSDI you are stating that you can no longer work in any capacity. Contrarily, if you are collecting unemployment benefits then you are admitting that you are both willing and able to perform work. Ensuring that the qualifications are met for both is best done through the eyes of a professional disability lawyer. You can apply for disability while collecting unemployment but it might not be the best decision. While the SSA has said that collecting unemployment does not immediately disqualify you from collecting disability, it could greatly reduce the chances of you getting approved. This is ultimately a gamble and is going to entirely depend on the claims examiner reviewing your case. Some claims examiners are lenient and will still approve your SSDI claim while you are collecting unemployment. This comes from their understanding that SSDI claims take a while and that you need income in the interim. On the flip side, your claims examiner might only see the blatantly contradicting nature of the two benefits and deny your disability claim on the spot. To prevent this from happening we recommend you wait until your unemployment benefits have run out or are nearing the end before filing your disability claim. This makes everything look good on paper and will force the claims examiner to review your claim based on your physical state alone and not the language used to describe the individual benefits. Always be upfront when filing for unemployment or SSDI benefits as you could face criminal charges and be ordered to pay back the money if caught. Exceptions In an effort to cut spending, the government is actively trying to prevent people from collecting both benefits at the same time. But like any other ruling, there are some legitimate and rare exceptions. One of the most common situations is when an individual is collecting unemployment and then faces a debilitating injury. They could file before their unemployment benefits stopped and still have a good chance at receiving SSDI as well. This is far from the only qualifying circumstance but it is one of the most common. There are other unique situations that qualify individuals to receive both benefits. If you aren’t sure what route to take, contact the highly trained disability lawyers at Barkan Meizlish LLP. We have won countless cases since 1957 and have the case results to back it up.

An employee is precluded from recovering temporary total compensation when they voluntarily abandon their position of employment. An employee voluntarily abandons their position when they violate (1) clearly defined, prohibited workplace conduct, (2) that was previously identified by the employer as a dischargeable offense, and (3) was known or should have been known by the employee. State Ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St. 3d 401, 650 N.E.2d 469 (1995). An example of voluntary abandonment is when an employee fails to show up for work without informing their employer for a certain number of consecutive days. AJL Denied Social Security Benefits In a recent case, the Supreme Court of Ohio held that an employee, who was discharged by their employer, voluntarily abandoned their employment by violating a written workplace policy, which required termination upon exceeding the limit of allowed instances of tardiness or absences. State Ex rel. Parraz v. Diamond Crystal Brands, Inc., Slip Opinion No. 2014-Ohio-4260 (2014). The employee argued that her absences from work were due to external reasons, and thus not voluntary. Id. at ¶ 6. However, because the employee was aware of the attendance policy and still failed to show up for work or provide documentation of the absence, the Court held that the violation did not need to be voluntary. Id. at ¶ 16. Thus, the Court held that an employee’s termination can constitute voluntary abandonment of a former position. Discharge “is often a consequence of behavior that the claimant willingly undertook, and may thus take on a voluntary character.” Louisiana-Pacific, 72 Ohio St.3d at 403, 650 N.E.2d 469, quoting State ex rel. Watts v. Schottenstein Stores Corp., 68 Ohio St.3d 118, 121, 623 N.E.2d 1202 (1993). Therefore, an employee’s violation of a work rule or policy need not be willful or deliberate, but merely a voluntary act that the employee knew may lead to termination of employment. State ex rel. Brown v. Hoover Universal, Inc., 132 Ohio St. 3d 520, 2012-Ohio-3895, 974 N.E.2d 1198, ¶ 11. If you have been denied workers’ compensation benefits because of voluntary abandonment, contact our Workers compensation lawyer at (614) 221-4221 to discuss your case with an attorney. http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2014/2014-ohio-4260.pdf State Ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St. 3d 401, 650 N.E.2d 469 (1995)