LIEB BLOG

Legal Analysts

Showing posts with label Employment Law. Show all posts
Showing posts with label Employment Law. Show all posts

Tuesday, May 13, 2025

Employee or Independent Contractor? The DOL Just Changed the Rules... Again

Are you running a business, hiring freelancers, or working as one yourself? You may want to pay attention because on May 1st, the Department of Labor (“DOL”) changed the rule, again, for who counts as an “independent contractor.” 


In a May 1st memo, the DOL stated it is no longer following its own 2024 rulebook when deciding how one is classified as an independent contractor versus an employee. The 2024 test required courts to look at two factors: 

    1. How the business controls the employee’s work (how much the business directs the worker); and 
    2. If the worker can make (or lose) money based on their own decisions (or, to put it another way: does the worker have opportunity for profit or loss?) 


Instead of following the 2024 rules, DOL investigators will revert to using the 2008 “economic reality” test. Instead of two, this test has seven factors, which include but are not limited to questions like: 

  • Is the worker’s role central to the business? 
  • Do they work there long-term? 
  • Who controls how the work gets done? 
  • Did the worker invest in their own tools or equipment? 
  • Can they make a profit, or suffer a loss, based on how they work?
  • Does the worker need entrepreneurial skill to succeed at the job?
  • Is the worker's business their own, or an extension of their employer's?


So, what does this mean for you? 


It means no one factor decides the issue; just calling someone a “contractor” in a written agreement doesn’t and never cut it. But here’s the twist: the 2024 rule is still in effect for private litigation. So, if an employee sues a business, courts might still apply the newer framework. On the other hand, if the DOL comes calling instead of a private employee, courts will use the 2008 test.  


For now, businesses should tread carefully. Abiding by two separate standards can be difficult; one can imagine, for example, that one court could decide that a worker is an employee under the 2008 test, but another court determines the same worker is an independent contractor under the 2024 rule. The rules got fuzzier, and the risks grew larger. Misclassifying employees and contractors can have major consequences: unpaid wages, liquidated damages, lawsuits, and more.


So, what’s your take? Should “employee versus independent contractor” classification hinge on a set checklist? Or is a flexible, case-by-case approach the better path? 





Tuesday, February 04, 2025

SCOTUS Makes It Harder for Workers to Recover Wages

On January 15, 2025, the U.S. Supreme Court ruled in E.M.D. Sales, Inc. v. Carrera that employers only need to prove that employees are exempt under the provisions of the Fair Labor Standards Act ("FLSA") by a "preponderance of the evidence" (more likely than not) to defeat a wage and hour claim. This decision replaces the tougher "clear and convincing" standard that had been applied by some courts prior to this decision.


The FLSA requires an employer to pay overtime to employees unless the employer can prove that the employees fall under an exemption, such as being an Executive, Administrative, Professional, Computer & Outside Sales Employees.


In the case before SCOTUS, the employees claimed that they were misclassified as outside salesmen and sued their employer for overtime pay, liquidated damages (double damages), and attorneys' fees. 


The lower court sided with the employees, in using the tougher "clear and convincing" standard, but the employer appealed while arguing that it only had to prove that the exemption applied by a preponderance of the evidence. SCOTUS agreed with the employer and sent the case back to the lower court to reexamine the facts to determine the applicability of the exemption under the preponderance of the evidence standard. 


Regardless, the message is clear: Employers now have a lower hurdle when defending a wage and hour case in proving that an exemption applies to a wage and hour claim under the FLSA. 




Tuesday, March 12, 2024

Shedding Light on Pay Disparities: What You Need to Know from EEOC's Latest Data

Today, we bring to your attention the recent release of pivotal data by the U.S. Equal Employment Opportunity Commission (EEOC). This data, encompassing information from 2017 and 2018, provides an insightful glimpse into the state of pay disparities in American workplaces., which is illegal based on the Equal Pay Act. To learn more about the Equal Pay Act, take a CLE from Attorney Andrew Lieb here.


Key EEOC Findings:

The EEOC's data dashboard reveals a troubling reality: pay disparities based on sex and race persist across nearly every industry and state. Here are some crucial highlights:

  • Gender Disparities: The data unequivocally shows that men continue to outearn women, with the median pay band for men consistently higher than that for women. In 2018, this gap was particularly pronounced, with men's median pay band being one or even two bands higher than women's.
  • Racial Disparities: The disparities deepen when considering race and ethnicity. Black or African American women and American Indian or Alaska Native women find themselves in the lowest median pay bands, reflecting a distressing pattern of inequality.
  • Industry and Job Category Trends: Across various industries and job categories, men consistently occupy higher median pay bands compared to women. While some sectors exhibit equal median pay bands, such as Accommodation and Food Services, these instances remain exceptions rather than the norm.
  • Geographical Disparities: Disparities are not confined to specific industries or job categories but are pervasive across different states. For instance, in 2018, Wyoming, Louisiana, and West Virginia exhibited significant differences in median pay bands between men and women.

Implications for Legal Action:

The release of this data underscores the urgency of addressing pay discrimination in the workplace. Here's what you need to know:

  • Equal Pay Act and Title VII: The EEOC enforces both the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964, which prohibit pay discrimination based on sex, race, color, national origin, and religion. If you believe that you have experienced pay discrimination, you may have legal grounds to pursue a case and if you live in a State, like New York, you can go back up to 3 years on the state's anti-discrimination law to bring your case.
  • Data as Evidence: The aggregated data provided by the EEOC can serve as compelling evidence in legal proceedings. If you find that your pay is unfairly lower compared to colleagues of a different
    gender or race in similar roles, this data can bolster your case.
  • Consultation: If you suspect pay discrimination in your workplace or have questions about your rights, we encourage you to seek legal consultation. Lieb at Law, P.C. is here to provide guidance and support as you navigate the complexities of employment law.
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Monday, February 26, 2024

Major Retaliation / Discrimination Case by NYS' Highest Court

On February 15, 2024, The New York State Court of Appeals issued their decision in the Matter of Clifton Park Apts., LLC v. New York State Div. of Human Rights. 


We now know that the "threat of litigation" may support a retaliation claim under the New York State Human Rights law (Executive Law 296). So, if you notice a claim of discrimination and the perpetrator then threatens suing you for other reasons, you likely have a retaliation claim in NYS. 


That's why it is imperative that victims immediately notice perpetrators of their claims in a notice of preservation, notice to insurance, and demand letter. This is how you protect yourself. 


To read the decision, click here.



Thursday, February 22, 2024

CLE - Proving and Calculating Front Pay and Back Pay in Employment Cases

Attorney Andrew Lieb is conducting a Continuing Legal Education course on Thursday, March 14, 2024 through the Connecticut Bar Association. 

Proving and Calculating Front Pay and Back Pay in Employment Cases (EDU240314)


About the Program

This course is designed to empower Connecticut Attorneys evaluating discrimination and whistleblower cases with the skills needed to calculate front and back pay. Attendees will delve into the intricacies of these calculations, exploring the underlying factors, and understanding the legal foundation established by case law and the rationale behind these formulas.

This course was created for both in-house and outside general counsel who need to provide an objective exposure analysis to their C-Suite counterparts when fielding discrimination claims. While this course is tailored for those with existing knowledge of the subject, it also serves as a valuable resource for referring attorneys to know what they have while undertaking an intake and giving initial advice to plaintiffs.

The course includes theory, math, and modeling with hypotheticals to walk participants through practical applications of the discussed concepts. To facilitate continued learning, participants will be provided with helpful links and reference materials, enabling them to further explore the subject matter beyond the course.

By the end of this CLE, Connecticut Attorneys will possess the skills and knowledge needed to confidently calculate front and back pay while having an invaluable resource for screening future employment law cases.

You Will Learn
  • About the impact of the different factors that contribute to the calculation of front pay and back pay
  • How to apply the different factors and how each impacts the calculations
  • Helpful skills and knowledge needed to defend settlements with your C-Suite Team

To schedule a workplace training contact Lieb at Law, P.C.