In 2007 I had the honor and privilege of speaking on behalf of SHRM before a joint U.S. Congressional sub-committee during a hearing about the misclassification of workers. The crux of the issue was, "What policies and practices best protect workers?"   I suppose my spin was then and continues to be, "What policies and practices best protect employers?" Nine years later the dialogue is still rampant and employers are under even more pressure from a greater number of federal agencies to get it right. And if you don't get it right, you may have liability for not only the misclassification itself but be subject to lawsuits filed by these non-employees for violation of one or more employment laws. For example:

Unpaid Interns: Lawsuits continue to be filed by workers alleging they should have been paid for the time they participated in an unpaid internship.  Some law firms have practices dedicated to finding and supporting these workers for possible class action lawsuits. At least seven states plus the District of Columbia have enacted laws giving these non-employees the right to sue for unlawful sexual harassment or other untoward conduct to which they may be subjected during their internship.

Undocumented Workers: The US Department of Labor (DOL), National Labor Relations Board (NLRB) and Equal Employment Opportunity Commission (EEOC) have all taken the position for years that an employer that even unknowingly employs an unauthorized worker may be sued by that individual under a variety of federal employment laws .Similarly, private organizations seek to aide and support these workers in pursuing their legal right related to employment practice violations. The interpretation of what damages are available to that workers has changed over time. 

Independent Contractors - The number of states that have signed a Memorandum of Understanding (MOU) with the DOL and IRS has grown and today the count is 29. These states have agreed to share tax and payroll records with these federal agencies for the purpose of identifying workers misclassified as independent contractors instead of employees.  Last July the DOL issued a letter modifying its position and shifting from an analysis of the control an employer has over a worker to the amount of economic dependence the worker has on the employer. See the August 2015 newsletter for a summary. 

Joint Employers - Do you ever use workers that you believe are employees of another company, such as temps from an agency, workers that are employees of a contractor or subcontractor?  If you exert a certain (unclear and undefined) level of direct or indirect control over those workers you may be deemed a joint employer along with the workers' primary employer. Joint employment carries with it liability for claims from those workers for violations of employment laws such as failing to pay for all time worked, overtime, unlawful harassment or discrimination. OSHA laid some groundwork in 2014 issuing a Memorandum on joint employment relationships. Then last year in August of 2015 the NLRB issued a decision, modifying its position on how it would assess these relationships. Within two weeks Congress responded with H.R. 3459 "Protecting Local Business Opportunity Act." Then four months later the DOL chimed in with its own interpretation describing vertical and joint employment relationships. 

Add to the above the myriad definitions of employee and/or independent contractor under state laws such as workers compensation and unemployment insurance and I repeat the question I posed to Congress in 2007, "Which rule are we to follow?"