In its weekly update to members, the California Association of RV Parks and Campgrounds (CalARVC) shared advice from the California Chamber of Commerce talking about the perils of classifying workers as employees or independent contractors.
While some of the details are specific to California, it’s a question that affects many campgrounds, especially ones employing working campers. And Jeff Sims with the National Association of RV Parks and Campgrounds advises RV park owners and operators not to treat work campers as independent contractors but to consider them as employees.
Below is what CalARVC provided from the California Chamber’s HR California:
In most situations, an employer’s right to control the details of an individual’s work, appearance, job duties, work schedule and other details will dictate whether the worker is an employee or an independent contractor.
If your company controls the details and the worker does not have meaningful discretion in how he/she completes the work, it has generally been the rule that the worker will be found to be an employee and not an independent contractor. The right to control is the common law test, according to the California Supreme Court’s decision in S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal.3d 341 (1989).
But, different tests for independent contractors have been used and there is no set definition for all purposes.
Now, a California court of appeal has issued an opinion allowing workers in a class action lawsuit to rely on a Wage Order’s expansive definition of “employee” to bolster their claim that they were misclassified as independent contractors.
This case further muddies the waters regarding exactly who is an independent contractor. The court’s ruling suggests that it will be more difficult to defeat an independent contractor misclassification claim when the claim involves allegations of Wage Order violations, such as failure to pay required minimum wage or overtime.
- Consult legal counsel before hiring an independent contractor and ensure that legal counsel reviews the contract and any related policies or procedures.
- Reclassification of workers from employees to independent contractor status is fraught with risk. Examine what has actually changed in the relationship to warrant reclassifying current employees as independent contractors.
- If your business could not exist without a worker or workers, then assume that the worker is an employee, not an independent contractor.