Employee v. Independent Contractor: Pitfalls of Misclassification (Part 2)

Hello all!  I'm back stateside after a brief business trip to Germany.  Unfortunately, the Equine Law Blog went "postless" last week due to a bad internet connection in the Hotel Dorint in Ausgburg, Germany.  Hotel management reported to me that the bad connection was unavoidable and due to the fact that the walls of the hotel are about 2 feet thick and made of concrete!!

In any event, I am happy to see that I seem to have brought some cooler temeratures back with me from Germany!

Last week I was at the Americana Horse Show in Augsburg, Europe's biggest Western horse show.  Below is a photo I took of my friend Uwe Roeschmann, a German cutting horse trainer whose training facility is located in Gainesville, Texas.  The photo shows Uwe entering the arena on September 1, 2011 and preparing to work cattle in the European Cutting Championship Open Finals.  As you can see, he was showing in front of a packed house!

I hope you find the following guest post material helpful.  It is Part II of a series on employer vs. independent contractor status by  employment law specialist Russell Cawyer, publisher of Texas Employment Law Update.  Enjoy! 

In Texas, the test for determining independent contractor status is a multifactor analysis that centers on the economic realty of the relationship.  The focus is on whether the worker is, as a matter of economic reality, dependent on the alleged employer or in business for himself.   This inquiry includes whether the employer has the right to control the progress, details, and methods of operations of the work.  A nonexclusive list of factors that are usually considered in this analysis include: 

  • the degree of control exercised by the alleged employer;
  • the extent of the relative investments of the work and the alleged employer;
  • the degree to which the worker's opportunity for profit or loss is determined by the alleged employer;
  • the skill and initiative required in performing the job;
  • the permanency of the relationship.

No one factor is determinative. If a court or taxing authority determines that the independent contractor was misclassified, the employer may be responsible for failing to provide the benefits the employee would have otherwise enjoyed had he been properly classified as an employee (e.g., participation in certain employee benefit plans and unpaid overtime).  Depending on the size of the workforce and the work it engages in, these sums can be significant.  Consequently, operations making extensive use of independent contractors should review these relationships carefully to ensure that the workers are properly classified and incorporate changes in the relationships that enhance the ability to defend that classification."

Follow Russell Cawyer on Twitter @RussellCawyer

Follow Alison Rowe on Twitter @alisonmrowe

Equine Law Blog to Broadcast Live from Germany

Auf Wiedersehen und bis bald! 

As you are reading this post, I'm probably at DFW airport getting ready to board a 10 hour Lufthansa flight bound for Deutschland. 

That means that--Lord willing and the creek don't rise--the Equine Law Blog will be broadcasting live from Germany during the weeks of August 22 and August 29!  

While in Germany, I plan on spending some time at the Luhmühlen Horse Trials (i.e. HSBC European Eventing Championships) as well as the Americana Horse Show in Augsburg. 

If any of you dear readers of the Equine Law Blog will be in the Hannover or Augsburg area in the next two weeks, give me a heads up because I would love to get together! 

While we're on the topic of international horse events, this page from Nedpoint Quarter Horses in Pauls Valley, Oklahoma has some great info on the import/export of horses between Europe and this area of the world.

Have a great Thursday, a great weekend, and I'll look forward to updating you on interesting equine law topics from the temperate climes [read highs in the mid 70's] of beautiful Germany.  

 

     Mary King, Luhmühlen 2010, Fence 27a, "boat at the quay"