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

Hey everyone!  I hope you like this picture I took today at the "Reiterstadion" in Hannover, Germany. The yellow building (pictured) is a barn within the Hannover city limits that was built at the turn of the century for the Germany cavalry. Now it’s a boarding and training stable surrounded by indoor and outdoor arenas plus a small cross-country course.

For today we have a guest post by employment law specialist Russell Cawyer, publisher of Texas Employment Law Update.  Enjoy! 

"Owning and operating a horse operation requires a lot labor. Owners use a variety of types of personal services. Improperly classifying these workers as independent contractors instead of employees can have a variety of adverse consequences. Potential liability that can result from misclassification include:

1)  Potential tax exposure from federal and state taxing authorities (i.e., unemployment tax, FICA, FUTA);

2)  Exclusion from certain insurance policies depending on the kind of coverage provided;

3)  Claims that misclassified contractors should be entitled to participate in employer benefit plans covering employees (e.g., stock option plans, health and benefit plans);

4)  Claims that misclassified contractors are entitled to overtime compensation.

Moreover, the likelihood of a misclassification mistake being discovered has increased as state workforce divisions, the U.S. Department of Labor and IRS are now coordinating their resources to catch employers that have misclassified workers. In Part 2 of this post I’ll outline the test that is used by Texas courts in determining whether a workers is an independent contractor or an employee."

Follow Russell Cawyer on Twitter @RussellCawyer

Follow Alison Rowe on Twitter @alisonmrowe