September 2017 Independent Contractor Misclassification and Compliance News Update


From JDSupra, Richard Reibstein discusses an Oklahoma case in which a personal assistant alleged she was an employee instead of an independent contractor. Richard writes:

OKLAHOMA OIL AND GAS RIG LEASING COMPANY DENIED SUMMARY JUDGMENT IN IC MISCLASSIFICATION CLAIM. An Oklahoma federal court has denied summary judgment to an oil and gas rig leasing company, Black Cat Oil Company, finding that there are genuine issue of material fact to be tried to a jury as to whether the company and its owner qualify as the owner’s personal assistant’s “employer” under the FLSA. The plaintiff alleged that in addition to being owed unpaid compensation under the FLSA due to misclassification as an independent contractor, the company and its owner engaged in sexual harassment, wrongful discharge, intentional infliction of emotional distress, and assault and battery under state laws.  The plaintiff alleges she was the personal assistant to the owner of Black Cat, while the company and owner argue that she was a part-time contractor who did light secretarial work.  With regard to the company’s disputed status as an “employer” under the FLSA, the court applied the economic realities test and, viewing the facts in the light most favorable to the plaintiff, as it is required to do on a motion for summary judgment when the facts are in dispute, determined that there was evidence of “control and supervision over [the plaintiff’s] work”; a “predominate lack of opportunity for profit or loss”; a “complete lack of investment” by the plaintiff; a consistent working relationship;  a relative lack of skill or training; and a necessity for her to work. The court stated: “[b]ecause a trier of fact could make findings as to…the economic realities test which would support the legal conclusion that [the plaintiff] acted as an employee rather than an independent contractor, [defendants] [are] not entitled to summary judgment as a matter of law” on the FLSA misclassification claim. The court reached the same result under the plaintiff’s state law claim for sexual harassment, finding that while there are facts indicating that she is an independent contractor, “taken as a whole the evidence presented by [the plaintiff] raises a general issue as to whether [the owner] exercised the requisite level of control” for the company to as an “employer.” Johnson v. Mueggenborg, No. 16-CV-659 (N.D. Okla. Sept. 19, 2017).

Source: September 2017 Independent Contractor Misclassification and Compliance News Update | Locke Lord LLP – JDSupra

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