Wage & Hour Law Flashcards
What makes someone an independent contractor?
1) IRS 20-factor test
2) Right to control test
3) Economic realities test
4) Hybrid test
5) ABC test
What factors are to be considered in deeming an individual an independent contractor?
1) Employer control/ability to supervise
2) More skilled the worker, e.g., bringing in skills not available at the employer, more likely to be deemed an IC
3) More flexibility the worker has, e.g., to do work for other parties, more likely to be deemed an IC
4) If work is [more/less] integral to the employer’s business
5) The shorter the duration of the engagement, more likely to be deemed an IC
How can employers protect themselves with respect to claims of employment versus IC?
1) Have a contract
2) Choose a label - include as many aspects of the tests as you reasonably can [??]
3) Build expenses into a flat fee agreement
Leaves of absence
Check EEOC’s website for its policy [??]
Can an employer in Illinois request a candidate’s social media passwords?
No, Illinois along with six other states has a password protection law. There are no exceptions in Illinois.
What are the rules regarding hiring of candidates with an arrest/conviction record?
EEOC recently changed its guidance.
What characteristics of an individual tend to indicate IC status?
1) Having an established business
2) Advertising in electronic/print media
3) Carrying insurance
4) Maintaining a place of business/making significant investment in facilities, equipment, supplies
5) Paying own expenses
6) Assuming risk for profit/loss in providing services
7) Being free to refuse work offers
What characteristics suggest a temporary/leased employee?
1) Supplied by a staffing firm
2) Staffing firm responsible for recruiting, hiring, training, management of employee benefits and payroll taxes
What pitfalls should be avoided regarding ICs?
1) IC agreements that are poorly drafted and rarely followed
2) Exercising too much control over ICs
3) Failure to contest unemployment insurance claims [??]
What actions suggest the employer is treating an AC like an employee?
1) Requiring attendance at meetings or training sessions
2) Requiring oral or written reports
3) Reserving the right to review/approve work product
4) Evaluating job performance
5) Requiring prior permission for absences
6) Reserving right to terminate services
What are the three principal exemptions from the payment of overtime compenstaion?
1) Executive
2) Administrative
3) Professional
What are the two primary factors for determining exempt status?
1) The amount of compensation, and
2) the employee’s duties
What is the remuneration standard?
To be eligible for the administrative, professional, or executive exemptions under the FLSA, employees must receive a guaranteed salary of at least $455 per week. 29 CFR § 541.600 Further, that pay must be received on a “salary basis,” meaning regular receipt of a predetermined amount of compensation that is not subject to reduction due to variations in the quality or quantity of work performed. 29 CFR § 541.602
What are the exceptions to the “salary basis” requirements?
1) Does not apply to certain professionals, such as lawyers, physicians, and teachers. 29 CFR § 541.600(e);
2) Does not apply to certain computer professionals who are paid at least $27.63 per hour for every hour worked. 29 CFR § 541.213(a)(17)
What is the primary duty standard?
Exempt status requires that an employee perform duties that are “primarily” executive, administrative, or professional in character, even if these duties do not constitute a majority of the work activity.
