Category Archives: Independent Contractors

Contract Issues, Independent Contractors, Wage and Hour Issues

The Legal Risks of Misclassifying Employees as Independent Contractors

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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 →
Artificial Intelligence, Employment policies, Equal Employment Opportunity Commission, Family and Medical Leave Act (FMLA), Independent Contractors, Non-compete agreements, Wage and Hour Issues

Evolving Landscape of Employment Law: Key Updates for 2025

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If you’re an employ­er or an employ­ee, keep­ing up with employ­ment law changes can feel like chas­ing a mov­ing tar­get. With new court deci­sions, leg­isla­tive updates, and evolv­ing work­place norms, it’s more impor­tant than ever to stay informed. As we set­tle into 2025, here are some of the most sig­nif­i­cant devel­op­ments shap­ing employ­ment law across the country—and par­tic­u­lar­ly in West Virginia.

1. Remote Work and Wage & Hour Compliance

The pan­dem­ic may be in the rearview mir­ror, but remote and hybrid work are here to stay. That shift has raised fresh legal ques­tions, par­tic­u­lar­ly when it comes to wage and hour compliance.

A major trend we’re see­ing is increased scruti­ny from the U.S. Depart­ment of Labor (DOL) regard­ing remote work­ers’ over­time eli­gi­bil­i­ty. The Fair Labor Stan­dards Act (FLSA) requires employ­ers to track hours worked accu­rate­ly, but when employ­ees are log­ging in from home, com­pli­ance gets tricky. Employ­ers must ensure that non-exempt employ­ees are prop­er­ly record­ing breaks, over­time, and any “off-the-clock” work.

West Vir­ginia busi­ness­es with remote employ­ees should take a close look at their time-track­ing poli­cies to avoid poten­tial wage claims. Even an hon­est mistake—like fail­ing to count time spent respond­ing to emails after hours—can lead to cost­ly litigation.

2. Noncompete Agreements Under Fire

Non­com­pete agree­ments have been a hot-but­ton issue in recent years, and 2025 is shap­ing up to be a turn­ing point. The Fed­er­al Trade Com­mis­sion (FTC) issued a rule (April 2024) with a near­ly com­pre­hen­sive nation­wide ban on most non­com­pete claus­es, argu­ing that they sti­fle job mobil­i­ty and wage growth. 

I will dis­cuss below the legal chal­lenges to the FTC rule, but employ­ers should review their exist­ing agree­ments and con­sid­er whether non­com­petes are still enforce­able (in light of applic­a­ble state law and the prospect of the FTC rule sur­viv­ing legal attacks) or if alter­na­tive protections—such as con­fi­den­tial­i­ty and non­so­lic­i­ta­tion clauses—are a bet­ter approach.

Sta­tus of the FTC rule

Con­tin­ue read­ing Evolv­ing Land­scape of Employ­ment Law: Key Updates for 2025 →