While there are potential Federal issues associated with mischaracterizing independent contractors, there are also State law issues that directly affect and determine how and whether an employer can classify someone as an independent contractor. Last year, Nevada’s Supreme Court addressed how to determine whether independent contractors are “employees” for the purposes of Nevada’s minimum wage laws. Interestingly, the Court addressed the issue in the context of exotic performers at the Sapphire Gentlemen’s Club. In the decision, the Court ultimately found in favor of the performer with respect to minimum wage payments, establishing a new standard for determining what constitutes an “employee” in the context of minimum wage payments.
More importantly, the Court recognized a few universal factors that should be considered when determining the classification of a worker. In particular, the Court enumerated six factors for consideration: (1) the degree of the alleged employer’s right to control the manner in which the work is to be performed; (2) the alleged employe...
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...he business of the person, including, without limitation, the:
(i) Purchase or lease of ordinary tools, material and equipment regardless of source;
(ii) Obtaining of a license or other permission from the principal to access any work space of the principal to perform the work for which the person was engaged; and
(iii) Lease of any work space from the principal required to perform the work for which the person was engaged.
As is evident from the above test, the determination of whether someone is an independent contractor is a fact-intensive analysis. Marquis Aurbach Coffing’s employment and labor attorneys can answer specific questions in more detail concerning your business. They can also document employment agreements or properly document independent contractor agreements should the workers qualify as independent contractors.
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