In recent months, one of the emerging issues within employment law has centered on whether groups of workers are employees or independent contractors. Recent cases from Georgia have focused on whether exotic dancers are independent contractors or employees of the clubs where they dance, with the dancers achieving a favorable ruling in at least one instance. A group of freelance stagehands obtained a less successful outcome recently, with the 11th Circuit Court of Appeals deciding that they were not employees of a referral service.
The referral agency, Crew One Productions, Inc., provided workers for live events in Atlanta and surrounding areas. The stagehands referred by Crew One worked a variety of events, ranging from concerts and sporting events to plays, trade shows, and graduations. Crew One would contract with the event planner for a number of stagehands and a specific hourly rate of pay. Crew One, which maintained a database of stagehands willing to consider taking assignments from the agency, would contact members of its database and obtain a number of available workers matching the number the event planner needed.
The stagehands brought a complaint to the National Labor Relations Board, alleging that they were employees and that the agency had wrongfully classified them as independent contractors. The board ruled in favor of the stagehands, concluding that they were employees. The agency appealed to the 11th Circuit and won.
The stagehands’ case had significantly different facts from some other recent independent-contractor-versus-employee cases in which the workers were successful, and this contributed to the different result. For example, in a case between a Decatur strip club and its dancers, the dancers there were assigned specific schedules and had a “policies and procedures” guide that read much like an employee handbook, instructing dancers on, among other things, how to look and behave while they were working.
By contrast, members of Crew One’s stagehand database were free to accept or decline jobs at will, with no repercussions for turning down work. Crew One’s stagehands did not have to pass a test or a physical exam to be part of the database, and the agency did not provide any sort of handbook or “policies and procedures” guide to its stagehands. All of these differences between Crew One’s stagehands and conventional employees, such as Pinups’ dancers, pointed to the same underlying issue: a lesser degree of control by the agency over the workers. As the 11th Circuit stated in its Crew One opinion, this issue of control (or lack thereof) is the most important factor in resolving whether a worker is an independent contractor or an employee.
Also, if you’re involved in a independent-contractor-versus-employee case in the 11th Circuit, it is important to note that this circuit places a lot of value on whether or not the employer withholds taxes. If the employer withholds no taxes, the 11th Circuit considers that to be “a strong indication of the absence of employee status.”
If you’re a business that has independent contractors in Georgia, it is important to understand what the law and the courts in the 11th Circuit demand in order for those workers to qualify as independent contractors (rather than employees) so that you can ensure that you are in compliance. For careful and diligent representation regarding these and other employment law issues, talk to the Georgia wage law attorneys at Mays & Kerr to get the advice and counsel you need.
To speak with one of our lawyers about your case, call 1-877-986-5529.
More blog posts:
Georgia Exotic Dancer Launches New FLSA Lawsuit Against Athens Club, Atlanta Employment Attorneys Blog, Jan. 13, 2016
Georgia Supreme Court Says Home Care Workers Covered by State’s Minimum Wage Law, Atlanta Employment Attorneys Blog, Dec. 4, 2015