Tag Archives: ABC Test

Not as simple as ABC

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Much of the discussion over worker classification, whether over California’s Prop 22/AB5 or the federal Protecting the Right to Organize or PRO Act, centers on the use of the employee-friendlier ABC test in distinguishing employees from independent contractors. Employees enjoy the benefit of employment laws, independent contractors don’t.

But even if the ABC test appears to apply, workers don’t always enjoy protections under the laws. Understanding the ABC test better, helps explain why workers  don’t always win even if the ABC Test applies.

The ABC test – control in fact

At least in Nebraska, if an employer can answer these four questions no, then their worker is not an employee : 1) worker free from control of work both under contract and in fact 2) service is outside of normal course of business and 3) the workers is customarily engaged in a trade, occupation, profession or business.

The biggest hurdle to obtaining employment status is showing a worker is free from control “in fact.” How exactly do you determine if a worker is free from control in fact? Courts like to use tests.  The good news is the courts already have tests that they can use to distinguish a contractor from an employee.

The bad news is that these common law tests are the reason why the ABC test statutes were passed in the first place. More bad news, is that I believe many state court and federal judges will continue to apply common law tests to determine control in fact under the ABC test. Using common law tests tends not to work out well for workers.

I think the role of judges in interpreting statutes is a good transition to another reason why the ABC test is far from a panacea for worker injustice issues. Courts, aided by lawyers from management, are going to find ways not to apply the ABC test. I can think of at least two ways employers could dodge the ABC test when it would appear to apply.

Narrow definition of wages for state unemployment

In Nebraska, the ABC test applies to unemployment insurance. But our state Supreme Court found away around applying the test.

In Omaha World-Herald v. Dernier, the Nebraska Supreme Court held that a newspaper distributor for the Omaha World-Herald was not earning wages for the purposes of unemployment benefits. (Nebraska later broadened the definition of wages for unemployment, but kept the Dernier exemption for newspapers).

Narrow definition of interstate commerce for Fair Labor Standards Act

The 7th Circuit Court of Appeals, in a decision written future Supreme Court Justice Amy Coney Barrett, found that Grub Hub drivers were not covered by the Fair Labor Standards Act because the drivers were not engaged in interstate commerce. The court ruled that commerce between the states was only incidental to the drivers’ employment.

The commerce clause, or interstate commerce, is how federal laws that protect employee pass constitutional muster. Federal courts can also narrowly interpret what constitutes commerce for the purposes of federal law. That narrow definition of commerce stated in US v. EC Knight is why workers’ compensation is a state law. Up until 1947, insurance was excluded from the definition of interstate commerce, which would help explain why unemployment insurance laws are dual state and federal laws.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Did it get easier for employers to dodge workers’ compensation in Nebraska?

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A recent Nebraska Supreme Court decision, Abotyes-Mosqueda v. LFA, made it harder for some workers to claim workers compensation benefits and easier for employers to classify workers as independent contractors.

Statutory employer

In this case the plaintiff attempted to join LFA as his statutory employer. A statutory employer is a contractor who works with a subcontractor in order to avoid liability under the Nebraska Workers Compensation Act. LFA subcontracted with Ismail Huerta who recruited a crew that included in the plaintiff. Huerta did not have workers compensation insurance. When plaintiff was hurt, he claimed workers compensation against LFA. 

In his favor, plaintiff had evidence showing that after the injury LFA required Huerta to obtain workers’ compensation insurance. That would point towards LFA being a statutory employer.

But the court found that the plaintiff could only join LFA as a statutory employer if he was an employee of Huerta. The court found he was not actually employed by Huerta. The court used a 10 factor test to determine that plaintiff was an independent contractor.

I would note that the court merely went through the traditional 10 factor test rather than look to the economic reality of the relationship between Huerta and the plaintiff. Nebraska appellate courts have traditionally done that analysis. I am not sure if that would have made a difference in this case, but I wish the court would have asked and answered that question.

The ABC Test

The question of whether the plaintiff was an employee likely would have come down differently if the ABC test was applied. In the ABC test a worker is an employee unless: they are 1) free from control of work both under contract and in fact 2) service is outside of normal course of business and 3) the workers is customarily engaged in a trade, occupation, profession or business. The ABC test applies to unemployment benefits in Nebraska.

But there is another distinction between how employees are classified under Nebraska workers’ compensation and unemployment law.

Burden of Proof

Under the Nebraska Employment Security Act (unemployment) the employer has the burden to show they meet the ABC test. But the Nebraska Supreme Court held in this case, that it is the employee who has the burden to prove the employment relationship. The court made a very general citation to the act in support of this proposition. However employees do have the burden of proof to show they were injured arising out of and in the course and scope of employment. It will probably require legislation to shift the burden of proof on employment status onto employers in workers’ compensation cases.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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