Technology Employment Law

Technology Employment Law

Legal Insight for Technology, Media, and Telecommunications Employers

The Misclassified Worker and Employee Benefit Plan Considerations

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If an employer is found to have misclassified an employee as an independent contractor or other contingent worker, then liability can be substantial under applicable federal and state labor, employment, tax and withholding laws including laws regarding payment of wages, overtime and unemployment compensation, workers’ compensation, discrimination and rights of workers and unions.   It is equally important to understand that compliance of employee benefit plans with requirements under the Employee Retirement Income Security Act of 1974 (“ERISA”) and the Internal Revenue Code of 1986, (the “Code”) can also be at risk.  Employers must be mindful of the effects misclassification of employees can have on their employee benefit plans.

Improper exclusion of workers from participation in employee benefit plans governed by ERISA can jeopardize a plan’s tax-qualified status as determined under the Code and can also provide these workers with a cause of action under ERISA. Retirement plans can lose their tax-qualified status for a variety of reasons, including as a result of “demographic failures” (where the plan does not pass coverage and nondiscrimination tests) or “operational failures” (where an employer impermissibly excludes a common law employee from plan participation believing that the worker is an independent contractor).   Worker misclassification can also expose employers to penalties under the Patient Protection and Affordable Care Act for failure to properly account for the number of its employees to determine applicable large employer status as well as its failure to offer any health coverage or to offer adequate or affordable coverage to full-time employees (and their dependents).   Further, the employer may be subject to penalties for violating the Code’s annual informational return and statement requirements.  Workers who are improperly excluded from ERISA plan participation may be able to bring a lawsuit for benefits due, to enforce rights under a plan or to clarify rights to future benefits, or raise breach of fiduciary duty claims.

Leased employees, as defined under Section 414(n) of the Code[1], also present additional challenges for plan administration and can place the qualified status of the plan at risk. Leased employees must be counted in the nondiscrimination tests of qualified retirement plans unless a safe harbor exception[2] is met.   Leased employees are also counted when conducting nondiscrimination tests for other benefit plans under various provisions of the Code (such as Section 79 (group-term life insurance), Section 106 (contributions by an employer to accident and health plans), Section 125 (cafeteria plans) and Section 132 (certain fringe benefits)).  Generally, where these plans do not pass applicable nondiscrimination tests, the benefits that are otherwise provided on a tax-free basis are includible in the income of the key and/or highly compensated employees benefiting under the plan. Furthermore, in the case where a leased employee converts his or her status to that of a regular employee, he or she must be credited with any periods of service previously performed for the employer for purposes of retirement plan eligibility and vesting.  Prior service as a leased employee is not required to be credited for determining eligibility under a self-insured medical plan.[3]

Employers must also be careful when engaging in joint-employer relationships, especially if they have not evaluated whether they are party to such relationships or whether they are the employer of the employees.  It is imperative to define in all relevant agreements and documentation which party is responsible for providing the workers with their benefits.

Plan sponsors may generally exclude from participation in employee benefit plans any leased employees or independent contractors.  However, there have been situations where such individuals have challenged their non-employee classifications and their exclusion from plans.  For example, in Vizcaino v. Microsoft (120 F.3d 1006 (9th Cir. 1997)), a class of freelancers sued Microsoft for participation in various employee benefit plans after the Internal Revenue Service determined, upon audit, that these workers were common law employees since they performed the same work as regular employees, under the same conditions and often under the same supervision.  As a result of this case, many plans include a provision which provides that if a leased employee or independent contractor is reclassified as an employee by a government agency or a court, then such worker shall not become eligible to become a participant in the plan by reason of such reclassification. These types of plan provisions may be drafted to exclude participation on a retroactive basis or on both a retroactive and prospective basis, provided applicable plan coverage and nondiscrimination tests can be met.  Such a provision is meant to evidence the clear intent of the plan sponsor.  Furthermore, many plans also include certain “Bruch” language (Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989)) which gives the plan administrator discretionary powers to interpret the plan itself and make determinations of fact with respect to such issues as eligibility for benefits, which can only be overturned by a court if the decision is deemed arbitrary and capricious.

It is important for employers to self-audit their worker classifications and to review benefits issues as part of any analysis, such as:

  • Benefit plan eligibility terms and distinctions between definition of employees, independent contractors, temporary employees and leased employees to ensure proper inclusion/exclusion of workers
  • Plan nondiscrimination tests and inclusion of leased employees
  • Proper crediting of service for workers who have converted to employee status
  • Plan language regarding treatment of workers following reclassification and plan administrator discretion
  • Consistency of provisions in all plan related documents, policies, procedures, communications and agreements regarding eligibility for benefits and excluded workers

Once an initial assessment is completed, decisions should be made as to any plan and related document revisions, or any corrective plan action, which may be required.

[1] A leased employee is a person who provides services to a service recipient if (i) such services are provided pursuant to an agreement between the recipient and a leasing organization, (ii) such person has performed such services for the recipient on a substantially full-time basis for a period of at least one year, and (iii) such services are performed under the primary direction or control by the recipient.

[2] The safe harbor exception which allows the exclusion of leased employees from nondiscrimination testing requires that the (i) leased employees comprise not more than 20% of the service recipient’s non-highly compensated workforce, (ii) leased employee is covered under the leasing organization’s qualified pension plan, and (iii) the leasing organization’s qualified pension plan is a money purchase pension plan that provides for immediate participation and vesting and employer contributions of at least 10% of compensation for each participant.

[3] Self-insured medical plans also undergo nondiscrimination tests under Section 105(h) of the Code and must cover at least 70% of a company’s employees.  If too many workers are misclassified as independent contractors, for example, a self-insured medical plan might not pass its nondiscrimination tests which could cause benefits to become taxable to highly compensated employees.

Labor Law Developments That Will Shake Technology, Media and Telecommunications Employers

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Several recent National Labor Relations Board (“NLRB” or the “Board”) decisions are likely to give further momentum to ongoing union organizing efforts targeting employers in the technology, media and telecommunications  industry.  Organized labor has already demonstrated that it is interested in actively expanding in this area, both among white collar employees and ancillary workers.

  1. Most significantly, on August 27, the Board discarded the test it had used for determining whether companies are joint employers for the past 30 years and adopted a new standard that will make it far easier for unions and employees to establish that a company is an “employer” and responsible for its contractors, suppliers, vendors and franchisees’ employees. Under the new standard, what matters is whether the purported joint-employer possesses the authority to control the terms and conditions of employment, either directly or indirectly. In other words, the actual or potential ability to exercise control, regardless of whether the company has in fact exercised such authority, is the focus of the Board’s inquiry.  As the Board puts it, “reserved authority to control terms and conditions of employment, even if not exercised, is clearly relevant to the joint-employment inquiry”.
  2. Since the Board’s amended rules for votes on unionization, commonly referred to as the “ambush election rules” because employers are often caught by surprise when a petition is filed, the median number of days between the filing of a representation petition and the day on which employees vote has fallen by 40%, to approximately 3 weeks from petition to vote. This means employers have a far shorter time to respond and campaign and is expected to significantly increase the union’s chances of winning the vote.
  3. Finally, in its decision in DPI Secureprint, Inc. the Board expanded a union’s ability to slice and dice an employee population to create ever smaller micro bargaining units in which unions can group supporters.

Taken together, these three developments expand the ability of unions to rapidly organize small bargaining units and to organize temps, leased employees and employees of tech, media and telecommunications suppliers and support, such as distribution, cleaning and janitorial, catering, and transportation and to saddle the company contracting for such services with  bargaining obligations by claiming it to be a joint employer with the actual employer. These developments present special challenges for companies that use staffing agencies or subcontractors to provide ancillary services. Unions have greater flexibility in setting the scope of a bargaining unit while employers have less time to respond to a petition and prepare for a vote on union representation. Employers should audit their relationships with service providers to determine the risk of joint employer treatment and develop strategies to immediately respond to union organizing campaigns.

Epstein Becker Green’s Wage and Hour App Now Includes All 50 States and More

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Wage & Hour Guide for Employers App

Wage and hour issues are on the rise in every industry, and tech is no exception.  (Especially see our post “How The Apple Class Certification Ruling Affects All Tech Companies.”)

Our colleague Michael Kun, leader of our Wage and Hour group, has just announced the release of a new, expanded version of the firm’s Wage & Hour Guide for Employers app.  Available without charge for Apple, Android, and BlackBerry devices, the app is a handy, mobile reference guide to wage and hour regulations – now in all 50 states, plus federal, District of Columbia, and Puerto Rico.

Following is from the announcement:

We have just updated the app, and the update is a significant one.

While the app originally included summaries of federal wage-hour laws and those for several states and the District of Columbia, the app now includes wage-hour summaries for all 50 states, as well as D.C. and Puerto Rico.

Now, more than ever, we can say that the app truly makes nationwide wage-hour information available in seconds. At a time when wage-hour litigation and agency investigations are at an all-time high, we believe the app offers an invaluable resource for employers, human resources personnel, and in-house counsel.

Key features of the updated app include:

  • New summaries of wage and hour laws and regulations are included, including 53 jurisdictions (federal, all 50 states, the District of Columbia, and Puerto Rico)
  • Available without charge for iPhoneiPad, Android, and BlackBerry devices
  • Direct feeds of EBG’s Wage & Hour Defense Blog and @ebglaw on Twitter
  • Easy sharing of content via email and social media
  • Rich media library of publications from EBG’s Wage and Hour practice
  • Expanded directory of EBG’s Wage and Hour attorneys

If you haven’t done so already, we hope you will download the free app soon.  To do so, you can use these links for iPhoneiPad, Android, and BlackBerry.

Five Technology, Media, and Telecommunications Developments Important to Employers

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Our colleagues Brandon C. Ge, Steven M. Swirsky, Daniel J. Green, Lori A. Medley, and Valerie N. Butera (with Theresa E. Thompson, a Summer Associate) contributed to Epstein Becker Green’s recent issue of Take 5 newsletter. In this edition, we address important employment, labor, and workforce management issues in the technology, media, and telecommunications industry:

  1. BYOD Programs: Privacy and Security Issues and Minimizing the Risk
  2. High Tech and New Media: Organized Labor’s New Frontier
  3. A Growing Role for the FTC in Regulating Workforce Management
  4. Avoiding Age Discrimination Complaints in an Industry Noted for a Lack of Age Diversity
  5. Robotics in the Workplace: How to Keep Employees Safe and Limit Exposure to OSHA Citations

Read the Full Take 5 here.

Hi-Tech Sports: Another Frontier

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1Recently, Epstein Becker & Green attorneys Michelle Capezza, Christopher Farella, Laurajane Kastner and Patrick Lucignani attended the New Jersey Technology Council (NJTC) 2015 Annual Meeting held on July 15, 2015 at the Forsgate Country Club in Monroe, NJ.   A dynamic panel discussed many innovative ways technology is being used in today’s sports and how it may be used in the future. Tools have emerged to assist in coaching, refereeing and reviewing plays, as well as the development of sensors and technology to protect player safety, virtual player training techniques and video analytics to confirm infractions and potential safety hazards, just to name a few.  John Nisi, Regional Chief Technology Officer for Microsoft Consulting Services remarked that one of the biggest challenges in designing these technologies is determining how to bring technology into the game without interfering with the fabric of the game. And many U.S. sports leagues,  such as the NFL, NHL, NBA, MLB, and NASCAR, are eager to utilize these new technologies but they must be designed and tailored to the needs of their particular sports, including the environments in which their sports are played.  Chip Foley, VP of Sports & Entertainment at High Point Solutions, and Adam Davis, Chief Revenue Officer for the Prudential Center & NJ Devils also noted the challenges associated with developing the required infrastructure in sports arenas and venues that can support the new apps and technologies being introduced.  Ian Goldberg, Founder and CEO of iSports360, offered yet another perspective involving use of mobile technologies for youth sports coaches and parents that can assist with training, coaching and managing performance expectations of young athletes.  When asked about sports fan technology, the panelists noted that video, interactive and visualization technologies for fans will become more prevalent.2

Technology companies interested in developing the apps and new technologies that will be useful and appealing to the sports market, as well as the organizations using these technologies, have a lot to consider.  The amount of data alone that can be collected with these technologies will transform how sports are played, viewed, analyzed and even bet on.  Undoubtedly, concerns regarding data privacy and security will need to be addressed.  Further, as panelists remarked, introduction of new technologies to the game often requires related revisions of rules and regulations governing the sport.  The possibilities are limitless, and perhaps the game will never be the same.

The NJTC is a not-for-profit, trade association which focuses on connecting decision-makers and thought-leaders from technology and technology support companies through access to financing opportunities, networking, and business support. Through its programs, the NJTC provides timely business information to help its members grow and succeed and provides forums for member companies to work together to advance New Jersey’s, and the region’s, status as a leading technology center. For more information regarding The New Jersey Technology Council, visit

Sixth Circuit Says Complaints to Harassing Supervisor Constitute Protected Activity

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Employers in the technology industry should take note of last week’s decision by the U.S. Court of Appeals for the Sixth Circuit in EEOC v. New Breed Logistics (PDF).  The court declined to reconsider a panel holding that, in the context of a retaliation claim, “a demand that a supervisor cease his/her harassing conduct constitutes protected activity under Title VII.”

Three former employees of New Breed Logistics, a supply-chain logistics company, asserted that they had engaged in protected activity by telling their supervisor to stop making advances and sexual comments.  The district court agreed, holding that protected conduct “can be as simple as telling a supervisor to stop.” The Sixth Circuit (PDF) affirmed, relying on the EEOC’s interpretation of Title VII’s opposition clause and finding that an oral complaint to a harassing supervisor – even if no other manager or supervisor ever learns of the complaint – constitutes protected activity.

The employer moved for a rehearing en banc, arguing that the Sixth Circuit’s decision created a split with the Fifth Circuit, which in 2004 had held that a single express rejection to a harassing supervisor did not constitute protected activity.  The employer also argued that an employer should not have to face a retaliation claim if the only person to have received the complaint was the alleged harasser.  In denying the motion for rehearing, however, the Sixth Circuit found that these issues were fully considered in the court’s original decision.

The Sixth Circuit’s decision highlights the need for an employer to train its workforce on its complaint procedures.  Although employees may engage in protected activity by orally rejecting a harassing supervisor’s advances – at least in the Sixth Circuit and in the eyes of the EEOC – they should be made aware of all avenues of complaint so that the employer has an opportunity to learn of and address the complaint.  Importantly, supervisors must be trained on how to handle any such complaints and to report them to human resources.

Baker’s Dozen: Quick and Easy Tips for Negotiating Commercial Leases in 2015

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Brooklyn, Manhattan, and Queens’ office and retail leasing markets are booming as rents continue to rise through the second quarter of 2015. The surge in leasing has gone hand in hand with strong employment growth with businesses of all sizes desiring to set up shop in New York City. Retail, industrial, and office tenants have flocked to capitalize on this surge in growth and opportunities. In addition, entrepreneurship, technology and creative firms are seeking more office and retail space for their growing businesses, especially in Brooklyn and Downtown Manhattan.

The following are a dozen quick and easy tips for office and retail tenants negotiating commercial leases in 2015.

  1. Working with a Broker. In most cases, a tenant will retain a broker to help find space. Ordinarily, the brokerage commissions are paid by the landlord and require the landlord’s broker to split the brokerage commission earned with the tenant’s broker. The brokers will set forth the essential terms of the lease in the term sheet, which provides a general outline of what the lease draft should include. It is extremely important to confirm that all of the business and legal terms in the term sheet are accurate and properly reflected in the lease. One cannot stress how invaluable it is to work with a broker who understands the market and trends as well as the unique desires of its clients and is able to negotiate the best deal in an optimum location for its clients.
  1. Use. Prospective tenants should always ask the basic questions: what space is being rented, including common areas such as hallways, rest rooms, and elevators and what are they specifically paying for.
  1. Build-Out. The lease should specify who will pay for the build-out. The lease should also state who is doing the construction of tenant’s initial improvements and define substantial completion of tenant’s improvements. The more construction items are worked out (including tenant’s retention of an architect and contractor) and approved by the landlord before the lease is signed, the less construction surprises (and costs) for tenants.
  1. Term of the Lease. The lease should clearly state when the lease commences and ends. Additionally, if a tenant has an option to renew the lease, the lease should specifically state the time periods required for notice to the landlord and the basis for calculating the renewal rent. Some leases also contemplate early termination rights including a termination payment and notice requirements. Tenants should also attempt to negotiate a drop-dead date, which is the date by which, if the space is not delivered, the tenant has the right to terminate the lease before taking possession of the space.
  1. Responsibility for Maintaining/Repairing the Space. The lease should clearly detail what repairs the parties are responsible for. Landlord and tenant responsibilities for repairs and/or maintenance costs include the walls, roof, drainage systems, plumbing, water systems, floors, glass, fixtures, heating/cooling system, sidewalks, and driveways. Tenants should try to limit its responsibilities to non-structural maintenance and repairs within the space only.
  1. Common Area Maintenance (“CAM”) and 7. Real Estate Taxes. It is important for tenants to understand whether the lease is a: (i) gross lease (rent covers all costs); (ii) net lease (tenant is charged separately); or triple net lease (tenant covers all costs, which is most common in today’s market). Determining the base year for CAM and real estate taxes is also a question of how much of these expenses get passed through to tenants. Landlords usually will require tenants to accept the current fiscal tax year (July 1 – June 30) as the base year until it is completely over but this point should not be overlooked and negotiated. Finally, tenants should always have a right to audit landlord’s calculations of CAM and real estate taxes.
  1. Assignment/Subletting. The lease should contemplate the extent to which tenants may sublet or assign the space. If the lease is assigned, it should also contemplate tenants’ future liability.
  1. Right of First Offer (“ROFO”) and 10. Right of First Refusal (“ROFR”). As many businesses grow and expand, the lease should contemplate a ROFO and/or a ROFR. ROFO rights give growing tenants a first chance to lease an additional portion of space if the landlord decides to lease it. Unlike a ROFR, a landlord is not required to have a legitimate offer which the tenant can either match or refuse. If tenant refuses to make an offer or if the parties cannot agree on the parameters of a deal, the space can then be leased to a third party. A ROFR requires that in the event the landlord receives an offer to lease space from a third party that landlord is willing to accept, then a landlord must submit the offer to the tenant first, who then has the right to lease the space on the same terms and conditions as set forth in the third party offer.
  1. Material Breach and Default. The lease should state what conditions or violations of its terms constitute a material and non-material breach and default of the lease. Tenant should have a written notice and cure period before being considered to be in default as landlord’s remedies for default include termination of the lease and could also include the acceleration of future rents.
  1. Guaranty. Because many growing businesses do not have substantial assets to guaranty their lease obligations, a landlord may ask a tenant for a personal guaranty and/or corporate guaranty. A personal guaranty requires an individual to personally guaranty tenant’s lease obligations in the event of a default. Tenants should try to limit the scope of the personal guaranty and/or corporate guaranty to past due rents only (the so called, “good guy guaranty”) so that a tenant is not responsible for future rent obligations in the event of a default.

As the economy continues to expand and strengthen at its fastest pace since 1990, businesses are well-poised for future growth and opportunity. Understanding all of the nuances that go into a well thought out and properly negotiated lease allows businesses to improve efficiencies and create the ideal work environment for their employees to grow.   And because we promised a baker’s dozen, please do not forget:

  1. Seek Legal Counsel. Tips like these help you know what questions to ask, but knowledgeable and experienced commercial leasing counsel lets you better assess, and then act on, the answers.

Salon Writers and Editorial Staff Demand Representation by The News Guild – Union Organizing in Electronic Media Continues to Grow

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My colleague Steven M. Swirsky at Epstein Becker Green has a Management Memo blog post concerning union organizing campaigns that will be of interest to many of our readers: “Salon Writers and Editorial Staff Demand Representation by The News Guild – Union Organizing in Electronic Media Continues to Grow.”

Following is an excerpt:

In the footsteps of last month’s union election at Gawker, an electronic news site, it has now been reported that all 26 of the writers and editors of San Francisco-based at Salon, another on line news organization, have served the publication with a letter announcing that each of them has designated the News Guild, which until April of this year was known as the Newspaper Guild,  as their collective bargaining representative.

Read the full original post here.

New York City Investigation of Hiring Practices

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My colleague Laura A. Stutz  at Epstein Becker Green has a Retail Labor and Employment Law blog post that will be of interest to employers doing business in New York City: “New York City Investigation of Hiring Practices.”

Following is an excerpt:

New York City’s Commission on Human Rights is now authorized to investigate employers in the Big Apple to search for discriminatory practices during the hiring process. This authority stems from a law signed into effect by Mayor de Blasio that established an employment discrimination testing and investigation program.  The program is designed to determine if employers are using illegal bias during the employment application process.

Read the full original post here.

Proposed DOL Rule To Make More White Collar Employees Eligible For Overtime Pay

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My colleagues Michael S. Kun and Jeffrey H. Ruzal at Epstein Becker Green has a Wage and Hour Defense blog post that will be of interest to all technology, media, and telecommunications employers: “Proposed DOL Rule To Make More White Collar Employees Eligible For Overtime Pay.”Clock

Following is an excerpt:

More than a year after its efforts were first announced, the U.S. Department of Labor (“DOL”) has finally announced its proposed new rule pertaining to overtime. And that rule, if implemented, will result in a great many “white collar” employees previously treated as exempt becoming eligible for overtime pay for work performed beyond 40 hours in a workweek – or receiving salary increases in order that their exempt status will continue.

Read the full original post here.