Cannabusiness Bosses: Labor & Employment Issues in the Regulated Era, Part 1: Employee or Independent Contractor?

Part 1: Employee or Independent Contractor?

With many operators receiving their state license and local permit, it is time to consider business operations.  This blog is the first in a series of articles we’ll be publishing over the next few months focusing on labor and employment law, broken into four parts: (1) who is an employer; (2) employer wage & hour basics; (3) workers compensation; and (4) other issues such as OSHA and farm labor contractors (FLCs). First off, the threshold question:

Who is an Employer?

An employer is defined as:

Any person… who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person. (Cal. Labor Code 1182.12(b)(3); Cal. Code Regs., tit. 8, § 11040(2)(H).)

From a labor perspective, one of the biggest mistakes businesses make is trying to get around being an employer in the first place.  Most often, this is done by either: (1) paying folks under the table; or (2) classifying workers as independent contractors.

Don’t Pay Workers Under the Table!

This is all bad for countless reasons. Paying workers under the table may meet the requirements for tax evasion if specific elements are met, and can subject you to significant financial liability. If the worker is injured on the job, or you fire them and they file for unemployment, you are in for a world of hurt when they file a claim and you are faced with a payroll audit.

Be Wary of Calling Workers Independent Contractors

One of the most common mistakes I see is misclassifying workers as independent contractors.  Calling someone a “contractor” can be appealing, because you simply pay the worker the agreed wages, issue a 1099, and let the worker handle the tax issues. It’s a tempting short-term solution, but VERY risky business.

California doesn’t like improper worker classifications, and will err on the side of finding an employment relationship in close calls. Employers can be penalized up to $15,000 for “willful” misclassification of an employee for the first offense.  Moreover, having a written “independent contractor agreement” is not determinative.

Right to Control

Exercising control is critical to employee classification, and often overlooked when folks “1099” workers to simplify payroll, overtime, and other employer requirements.  Further complicating things—there are different tests depending on the claims being made. But in almost every test, the right to control the means and manner in which the worker completes their job will be scrutinized.

Wage & Hour Law: the ABC Test

The most common claims employees make are wage and hour violations, because they’re easy to file (they can be submitted via email) and are generally heard in a streamlined administrative setting.

When analyzing whether someone was properly classified as an independent contractor, three factors are evaluated under the “ABC” test. Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal. 5th 903, 916-917, 964.  The ABC test starts by presuming the worker is an employee. To rebut this, the hirer must show the worker:

  1. Is free from the control and direction of the hirer as to performing the work (under the agreement, and in actuality); and

  2. Performs work outside the usual course of the hirer’s business; and

  3. Is customarily engaged in an independently established trade or business.

Generally, true contractors will be those you hire for a limited time, or to complete a specific task (i.e.: to build a structure, bookkeeper, etc.)  If you’re not sure, consult with an attorney to ensure you are not misclassifying workers.

So, you’re an employer. Now what?

Once you are an employer, you must comply with wage and hour laws, tax remittance, and workers’ compensation requirements.

For members of the Nevada County Cannabis Alliance, I’ll be leading a detailed discussion on these requirements on the monthly members call this Wednesday, June 19th at 9:00 a.m. More info about that here:

And the next blog in this series, Wage & Hours Basics, will review the most common issues related to proper worker pay.

Stay tuned.

Sarah Smale
Founding Partner, Origin Group Law LLP

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