From: bizjournals.com

Lately, employers have been hearing a lot about independent contractors being wrongfully classified.

Though an important issue — and one that companies should carefully consider — this is not another article urging employers to examine their independent contractor classifications.

Instead, we turn now to two cases with slightly different slants: individuals who argued that they should have been classified as employees in situations that aren’t ordinarily understood to constitute employment relationships.

I Yelp, therefore I am (an employee)

In one case before the California Northern District Court ( J eung, et al. v. Yelp, Inc., August 13, 2015), individuals who wrote reviews for the consumer-driven local business review website Yelp alleged that they were employees and should have been paid at least minimum wage.

These individuals indicated that they were directed by the company to evaluate businesses and services on Yelp.com, that they were directed how to write reviews, and that their work schedules and conditions were controlled by the company.

The court dismissed the case, indicating “That Yelp may realize financial profit from publishing the reviews written by plaintiffs and other putative class members (through third-party advertising on the website) does not necessarily mean that the writers are performing a service for Yelp.”

Given the number of websites that rely on user-generated content, a ruling that the Yelp review writers were actually employees may have had far-reaching implications. However, the court indicated that, at most, the writers’ actions would constitute volunteerism, not an employer-employee relationship.

Scholarship athlete or employee?

In another “aren’t we employees?” case, in 2014, scholarship football players at Northwestern University were deemed employees under the National Labor Relations Act (NLRA) by the Chicago District of the National Labor Relations Board (NLRB). That meant the players had the right to form a union and bargain collectively.

At that time, the Board’s regional director cited the players’ time commitment and the relationship between their scholarships and their performance on the field. He indicated that “it cannot be said that the employer’s scholarship players are ‘primarily students.’”

However, in August 2015, the NLRB in Washington, D.C., unanimously decided to dismiss the union’s petition to represent the players. The Board held that “processing a petition for the scholarship players at this single institution…would not promote stability in labor relations.” Notably, the Washington NLRB declined to rule on whether the players were, in fact, employees under the NLRA, as the Chicago District of the NLRB previously held.

It’s just not that simple

Many employers won’t need to wrestle with a potential employer-employee relationship with football players or online-content creators. Nevertheless, these cases remind us that classifying workers may not always be straightforward.

Employers must be on their toes to ensure proper classification or risk facing drawn-out court battles for back wages and other benefits that employees would have received. And yes, despite the promise to spare the lecture, that includes a thorough consideration of independent contractor classifications.