Misclassifying employees as independent contractors is one of the biggest pitfalls in employment law, and it’s an issue that both employers and workers need to understand. Getting it wrong can mean serious legal and financial consequences. So, what’s the difference, why does it matter, and how can businesses avoid costly mistakes?
Employee vs. Independent Contractor: What’s the Difference?
At its core, the distinction between an employee and an independent contractor comes down to control. Employees are subject to their employer’s control over how, when, and where they work. Independent contractors, on the other hand, typically operate their own businesses and control how they complete their work.
The Internal Revenue Service (IRS) and the U.S. Department of Labor (DOL) use different tests to determine worker classification:
- IRS Test: Focuses on three primary factors—behavioral control, financial control, and the relationship between the parties (IRS Publication 15‑A).
- DOL’s Economic Realities Test: Evaluates factors such as the degree of control, the worker’s opportunity for profit or loss, and the permanency of the work relationship (29 C.F.R. § 800.110).
- West Virginia Law: The state follows the common law test similar to the IRS approach, but courts may also consider economic dependence when deciding cases.
Continue reading The Legal Risks of Misclassifying Employees as Independent Contractors →
Non-Disclosure Agreements (NDAs) are everywhere in the business world. Whether you’re starting a new job, working on a sensitive project, or leaving a company, you might be asked to sign one. But what do these agreements really mean, and how enforceable are they? Let’s break it down.
What Is an NDA?
An NDA is a contract that prevents employees from disclosing confidential information. Employers use them to protect trade secrets, business strategies, client lists, and other proprietary data. NDAs can be standalone agreements or part of a broader employment contract.
There are two main types:
- Unilateral NDAs – One party (usually the employee) agrees not to disclose information.
- Mutual NDAs – Both parties agree to keep shared information confidential, often used in business partnerships.
Continue reading The Role of Non-Disclosure Agreements (NDAs) in Employment →
Part 2 of a series on West Virginia employment law
This article follows up my prior blog article, The Employment at Will Rule in West Virginia. In that article, I explained the basic contours of the employment at will rule.
With the employment at will rule radiating in the background, there are many ways it can be modified or bypassed. All claims relating to discrimination and retaliation, for example, modify the rule to the extent an exception is created by which the employer may not terminate the rule for a specific reason, such as age.
Scenarios: handbooks and other promises
But this article focuses on contractual or contract-like limitations on the employment at will rule. The parties (employer and employee) can enter into a formal employment contract that modifies the employment at will rule. But I am not addressing that formal contract in this article. I am really trying to focus on two scenarios:
Continue reading Handbooks and other ways to bypass the employment at will rule →
Employment Law News and Analysis
