What is IC Diagnostics™?
IC Diagnostics™ is a process that examines whether a group of workers not being treated as employees would pass the applicable tests for independent contractor (IC) status under governing state and federal laws, and then offers a number of practical, alternative solutions to enhance compliance with those laws.
Unfortunately, there is no one standard IC test under all federal laws, and most states have IC tests that not only vary from the federal laws but also differ from the laws in other states – even though some IC tests appear to be similarly worded. This creates a greater challenge for companies operating nationwide or in a number of different states. A process such as IC Diagnostics™ should be designed to assist both local and multi-state businesses.
Step 1 – Assessment, Measurement, Alternatives: The IC Diagnostics™ process – developed in 2007 and consistently refined and improved since – assesses well over 48 relevant factors indicating IC or employee status. It then measures the company’s compliance with each of the applicable federal and state laws on an IC Compliance Scale™, which is calibrated to offer a range of alternative ways to enhance IC compliance, including restructuring, re-distribution, reclassification, or variations thereof. The use of a process such as IC Diagnostics™ thereby offers businesses and other organizations (such as non-profits and governmental units) that currently use ICs a thorough understanding of the extent to which each alternative can minimize or eliminate future misclassification liability.
Step 2 – Restructuring and Re-documentation: If a process such as IC Diagnostics™ indicates that the restructuring alternative is a sound choice, most companies will tend to elect this alternative. For some, restructuring may be modest; for others, it may need to be more substantial – but in either case the objective is not to change the business model but rather to retain its essential components.
Restructuring can be accomplished in tandem with re-documenting the IC relationship. This is a comprehensive undertaking whereby the entire restructured relationship between the ICs and the organization is memorialized in a set of documents. The starting point for this part of a process such as IC Diagnostics™ is the use of a list such as the 48 Factors-Plus™, which was developed based on a review of thousands of IC cases over the past ten years. That list has mushroomed to over 70 criteria used by federal and state courts and administrative agencies to determine IC status, and each factor is weighted to reflect its relative importance in assessing compliance with applicable laws.
Use of a list such as the 48 Factors-Plus™ assures two key business and legal objectives are met: (1) that the restructuring and re-documentation of the IC relationship is thorough, practical, and sustainable, while maintaining the key components of the company’s business model; and (2) that the restructured IC relationship is articulated within an agreement containing state-of-the-art provisions that are designed expressly for the particular business – without any empty recitals or misstatements of how the relationship will be implemented.
Step 3 – Re-implementation. The next step in a process such as IC Diagnostics™ is actually implementing the restructured IC relationship. Companies must ensure that what is set forth in the re-documented IC agreement is implemented in practice on a short-term and long-term basis. Otherwise, businesses are needlessly providing arguments to class action lawyers and government regulators that their IC agreement is nothing more than a piece of paper that is belied by the actual facts and should be disregarded – or worse, can be used to demonstrate that the IC relationship is a little more than a thinly disguised sham indicative of willful misclassification.
A process such as IC Diagnostics™ should also include a number of other key implementation steps designed to ensure lasting conformity with the restructured and re-documented IC relationship.
The Need for Customized and Sustainable Solutions
There are no “quick and dirty” ways to enhance IC compliance, and “one size fits all” solutions are likely to be ill-fitting and disserve the objective of meaningfully minimizing or eliminating IC misclassification liability. The use of model, standard, or “form” IC agreements tend to cause businesses to overlook the need to structure, document, and implement a sustainable IC model that is more likely to withstand legal scrutiny under applicable legal tests. The IC solution(s) selected should facilitate the business objectives and be user-friendly, long lasting, and capable of being defended for years to come.
Bona fide restructuring, re-documentation, and re‑implementation need not be a prohibitively expensive or daunting task. Once undertaken and completed in a reasonably short period of time, these steps can place a business in an enviable place: namely, an enhanced state of IC compliance that can minimize the likelihood that a governmental agency, class action lawyer, union, or employee seeking unemployment or workers compensation will attempt to challenge the IC relationship – and if a challenge is mounted, these steps can maximize the likelihood that the IC relationship will be upheld as valid.
Can Misclassification Exposure Be Quantified?
Some businesses ask, is there a quick way to measure the potential amount of misclassification liability to which my company may be exposed? A process such as IC Diagnostics™ should use an IC Misclassification Metrics™ tool to allow businesses to determine individual and aggregate amounts of exposure to IC misclassification liability that can be minimized or eliminated using IC Diagnostics.™
The Reclassification and Redistribution Alternatives
Even where the use of a process such as IC Diagnostics™ that IC compliance can be enhanced by restructuring, some businesses may wish to consider other alternatives. They include including reclassification (either voluntarily or through an available government program) or redistribution through the use of a knowledgeable, fee-based workforce management firm.
These alternatives are more fully discussed in the White Paper written by the Publisher of this legal blog.
IC Diagnostics™ Can Be Effective in Defending Claims of IC Misclassification
Finally, many of the same proprietary tools for enhancing IC compliance can be invaluable in defending administrative agency and court challenges to a company’s IC classifications. For example, a tool such as 48 Factors-Plus™ can be used in formulating comprehensive and more effective defenses to such legal challenges.