As HR management hurdles go, figuring out who is an employee vs. an independent contractor is seemingly a moving target – one that can drive HR executives crazy,
Apart from government weigh-in on the issue and some 37 bills floating around Congress on the matter of who is an independent contractor, emerging complicating factors include the rise of lawsuits involving companies such as Uber, which is facing litigation about the distinction.
Between that intense regulatory scrutiny and the countless options employers have as to whom they employ to perform services—from independent contractors to contingent workers employed by third party providers to online workforces—the potential for legal mistakes has never been higher.
With that in mind, Littler Mendelson, the large San Francisco-based employment law firm, is now offering clients a technology solution, ComplianceHR, that provides employers with concise, instantaneous guidance on critical employment law questions, such as independent contractor and overtime exempt classifications.
“A lot of HR people have no idea how many independent contractors they are even using because they are not always the people hiring them,” says Scott Rechtschaffen, Littler’s chief knowledge officer. “But when litigation happens then HR gets involved, which is too late.”
A separate company and joint venture with tech provider Neota Logic, ComplianceHR allows companies to document employment law decisions, preserving a record of how decisions were made for use in the event of enforcement actions or litigation. It also will generate key employment documents, including independent contractor agreements, offer letters and non-disclosure agreements.
“Every day, employers of all sizes ask their legal or HR professionals to help them make critical employment decisions,” Rechtschaffen says. Questions such as “Who can we retain as independent contractors? Which employees need to be paid overtime? When do we have to grant family or medical leave?” all need straight, accurate answers.
“Making the wrong decision on these questions can be costly, but if the decision is not made quickly, employers may lose the flexibility and agility they need to engage and retain the talent necessary for a competitive edge,” Rechtschaffen says, adding that ComplianceHR launched with the independent contractor app; the employee/family leave app is next in line.
While it may be unusual for a law firm to create a separate company to offer a tech-based solution, Rechtschaffen explains that ComplianceHR needed to be its own company because it goes beyond just compiling data; it actually evaluates and makes recommendations. To do that, it uses algorithms based on state laws, IRS regulations and other tests, as well as the results from more than 1,400 court decisions nationwide.
Compliance HR’s Independent contractor app gathers information from both company and contractor, returning a report assessing the risk of classifying the contractor as an employee under federal and state laws.
“Clients such as in-house attorneys can set their risk tolerance and they can even reject the advice,” Rechtschaffen says, noting that large staffing companies and large employers are key client targets, but the platform can work for any size employer.
Rechtschaffen explains that Littler’s guiding philosophy is that at root the law business is an information industry. As such, law firms are not immune from the changing world, one based on technology and data analytics.
Plus, the combination of intense and expanding regulatory scrutiny and more options than ever before for sourcing employees creates more potential for employers to make mistakes that adversely impact their businesses. Through ComplianceHR, Littler saw an opportunity to offer clients a technology solution for the complicated compliance issues they continue to face.
“In the end, today we all love online solutions,” he says. “We book our airline seats and restaurant reservations online. We get our news and collaborate with friends online. Littler believes online solutions like ComplianceHR will help our clients succeed.”