By David Theard

On October 25, 2017, the Louisiana Workforce Commission (LWC) issued a press release acknowledging the efforts of a task force that combats the misclassification of employees as independent contractors.

The task force, known as Government Against Misclassified Employees Operational Network (GAME ON), is made up of members of the LWC's unemployment insurance and Office of Workers' Compensation divisions and the Louisiana Department of Revenue, with cooperative agreements with the IRS and the U.S. Department of Labor's (DOL) Wage and Hour Division (WHD).

GAME ON to Ramp Up Efforts

The GAME ON task force has focused on industries that the LWC claims are historically known to use independent contractors on a large scale, including construction, healthcare, hospitality, personal service, and staffing companies. The task force was recently named GAME ON, but according to the press release, for the last several years, the LWC, through use of its tax auditors, has led the nation in audit-based discoveries of misclassified workers. In 2015 alone, the auditors discovered what they considered to be 20,000 cases of misclassified workers in Louisiana, totaling $101 million in unreported wages.

The press release states that the task force will ramp up its efforts even more in 2018, including the use of software that helps the LWC identify suspect companies. If a company is found to have misclassified workers, it generally has to pay back taxes on unreported wages. Companies could also face penalties of up to $1,000 per offense.

Each member of the task force has different interests in the misclassification of workers as independent contractors. For example, the LWC wants to ensure that the state's Unemployment Insurance Trust Fund is being properly funded. Companies do not pay into the trust fund for independent contractors.

The LWC's Office of Workers' Compensation governs whether a company is maintaining adequate workers' comp coverage for their employees, and if a company is classifying a worker as an independent contractor, it's likely not maintaining adequate coverage. Of course, the IRS has an interest in ensuring proper federal taxes are being paid on employees. Finally, the DOL has an interest in ensuring workers are being paid minimum wage and overtime, which often isn't considered when using independent contractors.

Bottom Line

This continued focus by the GAME ON task force is important to any company that regularly uses independent contractors. All companies should review their use of independent contractors to ensure they aren't being misclassified.

For example, in determining whether an individual is actually an employee, the LWC considers whether the individual is subject to the direction and control of the company, whether the services of the individual are within the usual course of business of the company and are performed at the company's usual place of business, and whether the individual has her own established business independent of the company's business.

Simply calling a company or an individual an "independent contractor" isn't enough. What the LWC and other agencies consider is the reality of the situation and whether the individual is subject to the control and direction of the company. It's important to consider all of these factors when making such a determination, especially with the heightened scrutiny from government agencies.

David Theard is an associate in Jones Walker's labor relations and employment practice. Theard is also an editor of Louisiana Employment Law Letter. He can be reached in New Orleans at dtheard@joneswalker.com or 504-582-8402.