Businesses of all types and sizes throughout the United States, Mexico and beyond bring their disputes to Gardere's litigation team and receive practical, responsive, boutique-style attention in return. Our clients have access to the firepower and value of a well-known and highly-regarded Firm's capabilities and interdisciplinary strengths.
Gardere has a national and international energy practice formed around our Energy Industry Team, which is a multidisciplinary group of approximately 80 attorneys with diverse backgrounds, experience and skills specific to the energy industry. Our team includes attorneys who have served as in-house counsel for major energy companies, providing a depth of insight into our clients' needs, issues and concerns. We understand and regularly practice in virtually every sector of the energy, and we represent a wide variety of industry participants from multinational corporations to individuals.
From our offices in the United States and Mexico, our International Practice helps clients operate in today’s global economy. We have more than 30 professionals operating as a boutique within an Am Law 200 law firm and are able to provide focused service with the resources of a large firm. We understand that clients who are engaged in the global marketplace need lawyers who can operate seamlessly across multiple jurisdictions. Our international experts are multi-lingual, are culturally fluent and intimately familiar with various legal systems across the world, especially those in Latin America. Whether you need help with commercial transactions, regulatory matters, customs and import regulations, immigration matters, M&A and joint ventures, international disputes, or international tax planning, Gardere’s international team is here to assist you.
We represent domestic and foreign private funds in all aspects of fund formation, fund operations, platform and add-on acquisitions, and portfolio company operations. Our team has a reputation for being the go-to-lawyers for private equity funds, hedge funds, venture capital funds and family offices. We are known for our vast deal experience, the efficient way we staff and manage our work, and the way we maintain our relationships. We get deals done with sophisticated, strategic, and practical advice tailored to the needs of our clients.
*Not admitted to practice law.
While recovering from troubling economic times, employers are often inclined to take steps to reduce overhead. One common cost-saving technique is to classify (or re-classify) workers as independent contractors, rather than employees. By "1099ing" a worker, the employer avoids payroll taxes and the need to provide employee benefits, and often the employer does not pay "contract labor" for hours worked over 40 per week, as is usually required by the Fair Labor Standards Act. The duties imposed by the FLSA apply only to "employees" of the employer, not to independent contractors. However, if the independent contractor classification is not in accordance with federal law, it can have far-reaching and expensive legal implications. Often, unpaid overtime is just a portion of the potential exposure. Unpaid benefits can add up to extraordinarily large amounts. For example:
This year both the U.S. Department of Labor and the IRS have articulated their intent to target employer misclassification of independent contractors. Both federal agencies are concerned that misclassification deprives workers of the wage and hour protections provided by the FLSA and of other employee benefits, and also deprives the government of revenues from avoided payroll taxes.
True independent contractor status does not depend upon an agreement between employer and worker, but rather on the underlying nature of the work relationship. For example, some employers hire temporary workers during a busy period to perform the same duties that current employees perform but think that they are somehow "contract labor" or "contract employees." These terms, however, have no real meaning under wage and hour laws.
Unfortunately, there is no hard and fast test or rule that can easily be applied. The IRS, DOL, federal common law and Estate Courts all have articulated similar, but yet different tests to determine whether a worker is an employee or independent contractor. However, recent case law indicates that regardless of the forum, the inquiry should hinge on how much control the employer retains over the work performed, and how much economic and actual independence is retained by the worker. Some general guidelines are as follows:
An independent contractor normally:
Point of reference: like individuals should be treated alike. If an "independent contractor" is performing the same duties and job as an employee, the inconsistency is problematic. Proper classification is a fact-sensitive inquiry; no one factor is determinative. Job titles mean very little, and individualized analyses will control whether someone is an economically-dependent employee or an independent contractor.
The labor and employment lawyers at Gardere are seasoned professionals in auditing independent contractor classifications and can greatly reduce risks and exposures. This is certainly an area in which an ounce of prevention is worth a pound of cure. We can both assist you in auditing current workers and in appropriately classifying new hires going forward.
The publications contained in this site do not constitute legal advice. Legal advice can only be given with knowledge of the client's specific facts. By putting these publications on our website we do not intend to create a lawyer-client relationship with the user. Materials may not reflect the most current legal developments, verdicts or settlements. This information should in no way be taken as an indication of future results.
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