Business use of independent contractors coming under fire in legislative proposal

A legislative proposal that is the outgrowth of state and federal agencies targeting what they perceive as a growing abuse by business of misclassifying workers as independent contractors is stirring the concern of businesses who view the bill as an excessive reaction.

In fact, one Seattle-area attorney long involved in independent-contractor legal issues, says an attitude "inhospitable to the independent-contractor business model" has become evident at both the state and federal levels.

Employing independent contractors has long been an essential practice in some industries, as with newspapers' use of freelance writers or real estate firms and their independent agents. But the pressures on business during the economic downturn from which some are still just emerging has made the strategy of using independent contractors rather than hiring employees more common, and with that has come some abuse.

State and federal agencies, upset by what they view as millions in lost tax revenue, aided by labor leaders' targeting House Bill 1414 as one of their top priorities this legislative session, have tagged misclassification abuses as part of the "underground economy."

There are several things about the bill, titled "The Employee Fair Classification Act," that business views as a reach too far by those proponents. The first is that the bill would establish the premise that "an employer-employee relationship is presumed to exist" for anyone who performs service for pay." What follows is a series of exemptions to that blanket assumption.

Some besides business may find it a cause for concern that the measure would create a new provision making it a crime to retaliate against those who complain to authorities about a misclassification by the employer, with an assumption of guilt. The measure would make violations of the retaliation provision a gross misdemeanor and, in a Napoleonic-law twist, assume the business is guilty of the crime unless it can prove its innocence.

Kris Tefft

Kris Tefft, chief legal counsel for the Association of Washington Business, has led the effort to lobby lawmakers and alert businesses about the bill's problems. He says his priority in seeking to raise concerns about the bill "is to convince legislators that this is too much of a regulation step to impose on legitimate businesses."

The bill has made it out of one committee and has until Friday to be cleared by the finance committee for an eventual vote in the House, where passage would be likely since this bill is a top labor priority this session and the House is controlled by Democrats. A companion bill filed in the more moderate Senate has languished in committee so business is hoping that means the measure won't clear the Legislature this session.

In fact, Tefft's goal is to keep the measure from even reaching a vote in the House.

"While it is a top labor priority, it has drawn fire from a broad and deep coalition of various industry groups who are all working on keeping the bill from the House floor," he said. The goal is to "get legislators to go back to the drawing board in terms of addressing identifiable problems with the 'underground economy.'"

Nigel Aviles

Nigel Avilez, an attorney on Mercer Island who has been involved with the legal issues surrounding independent contractors since before it became a hot issue, suggests government has created "a climate that is intolerant of independent contract misclassifications."

The bill, despite its potential major impact on businesses, is only now starting to gain some visibility outside the legislative halls and raising the eyebrows of business owners as they learn of it..

None of the opponents of the measure deny that some businesses, particularly many whose fortunes have suffered a serious downturn in the recent financial turmoil, have become scofflaws, basically trying to be creative in worker relations, and thus creating a problem for legitimate businesses.

And that, according to Avilez, has created "an inflexibility" on the part of agencies toward working with businesses who have merely made a mistake in classification of independent contractors, rather than being guilty of cheating. "Some agencies feel people are cheating the system so they don't want to cut any slack for any business."

Avilez did a public-records request and searched the documents to conclude "there is an apparent coordination between the U.S. Department of Labor and state agencies."

"For example, between 2010 and 2012, public records show that the Washington Employment Security Department (ESD) audited close to 140 nail salons, and assessed substantial taxes in many of those," Avilez said. "The quantity of these audits was far and above most other industry audits, clearly suggesting that the nail industry was being targeted by ESD."

Five hair salons were found to owe taxes of more than $20,000, not including penalties, with three dozen hit with taxes of $5,000 or more, plus penalties.

As an indication of the historic role of independent contractors for some industries, Tefft noted that "a lot of industries are coming forward with bills that would exempt them from the provisions of the bill should it become law."