Labor and Employment Insights
Analysis and practical guides on labor and employment.
56 articles, checklists, and guides on labor and employment law, written by the attorneys at MC Law. Every piece is general information, not legal advice—for a specific matter, contact the firm.
Independent Contractor or Employee? Worker Classification Under the FLSA, the IRS Test, and State ABC Laws
Calling a worker an independent contractor does not make them one. Whether a worker is an employee is decided by tests that differ by statute, by agency, and by state, which means the same person can be an independent contractor for one purpose and an employee for another, at the same time, doing the same work. This article explains each of the tests that actually matter: the economic reality test under the Fair Labor Standards Act and the Department of Labor rule that restated it, the common law control test the IRS applies for employment taxes, the common law agency test the Supreme Court adopted in Darden for statutes that do not define employee, the ABC test that California, Massachusetts, New Jersey, and other states apply, and the National Labor Relations Board's shifting standard. It explains what each test asks, where they diverge, and which facts move the analysis. It then covers the consequences of getting it wrong, which extend well beyond back wages to payroll taxes, benefits, workers compensation, unemployment insurance, and intellectual property ownership, and it explains the Section 530 safe harbor that can eliminate federal tax liability entirely. It closes with a classification audit, a worked example, an FAQ, and related reading.
OSHA Compliance and Workplace Safety Enforcement
Safety enforcement is one of the few regulatory regimes where an inspector can arrive without notice, walk the floor, interview employees privately, and issue penalties based on what a supervisor says in the first ten minutes. This article explains the system and how to be ready for it. It covers the statutory structure, the general duty clause that reaches hazards no standard addresses, and the standards that generate the most citations year after year. It then walks recordkeeping and the reporting deadlines that are measured in hours, the anatomy of an inspection from the opening conference through the closing conference, and the citation classifications that determine penalty exposure. Later sections cover contesting citations, abatement and settlement, multi-employer worksite liability, state plan differences, criminal exposure, and the anti-retaliation provisions that turn a safety complaint into an employment claim, with a worked example, a program checklist, and an FAQ.
Family and Medical Leave: The FMLA, State Programs, and How Leave Interacts with the ADA
Leave administration is where employers with no dedicated HR function most reliably create liability, because three legal regimes govern the same absence and each has different triggers, different durations, and different consequences. This article explains how they fit together. It covers FMLA coverage and eligibility, what counts as a serious health condition, the notice and certification sequence with its precise deadlines, intermittent and reduced-schedule leave and the attendance policies that collide with it, and the job restoration and benefits obligations at the end. It then addresses the growing patchwork of state paid family and medical leave programs and paid sick leave laws, how they stack with the FMLA, and how payment interacts with an employer's own policies. A long section covers the interaction with the ADA, including leave as a reasonable accommodation beyond FMLA exhaustion and the maximum leave policies that generate systemic enforcement actions, followed by workers compensation coordination, a worked example, an administration checklist, and an FAQ.
Workers Compensation: The Grand Bargain, the Claim, and the Exceptions
Workers compensation is the oldest and largest no-fault system in American law, and almost nobody outside it understands the trade it makes. An injured worker gives up the right to sue the employer and to recover for pain and suffering; in exchange, benefits are paid without proving fault and without the delay of litigation. This article explains the bargain and everything that follows from it: what injuries are covered and the phrases that decide coverage, the benefit categories and how each is calculated, the medical control fights that dominate modern practice, the exceptions that let a worker sue anyway, the third-party claim that is often worth more than the compensation case, and the settlement mechanics. It is written for injured workers, employers, and the lawyers on both sides.
How to Write an Employee Handbook
An employee handbook is the single most-read legal document most workers ever encounter, and a poorly drafted one can quietly hand away the at-will defense, violate federal labor law, or become Exhibit A in a discrimination suit. This guide walks through how to write a handbook that informs employees, reflects your culture, and protects the company. It covers the at-will/disclaimer balance and the implied-contract trap, the essential policies every handbook needs (EEO and anti-harassment, ADA accommodation, FMLA and other leave, wage-hour, PTO, code of conduct, social media, confidentiality), the National Labor Relations Board's shifting standard for facially neutral work rules after Stericycle (2023), acknowledgment forms, multistate complications, arbitration agreements, and how a handbook becomes evidence. Plain-English throughout, with worked examples and current authority through 2026. It closes with an FAQ and links to related mclaw.io resources.
Wage and Hour Compliance Toolkit
Wage and hour exposure is created by systems configured once and never tested, not by decisions anyone made to underpay. The classifications were set when the roles were created, the payroll system was configured at implementation, and the rounding rule has run untouched for six years. Meanwhile the exposure compounds across the whole job classification, doubles through liquidated damages, and extends a third year on a willfulness finding. This toolkit builds and tests the program: classifying correctly and documenting close calls, configuring the regular rate so overtime is right when a bonus is paid, capturing hours including remote and pre-shift work, handling contractors and joint employment, layering state requirements, running the self-audit, and responding to a Department of Labor investigation or a collective action when one arrives.
Worker Classification Audit Checklist: A Practical Checklist
Misclassification is unusual among compliance problems because a single worker triggers exposure under four or five separate legal regimes at once, each applying its own test and each with its own agency. This checklist runs an audit that accounts for that. It starts by building the population and gathering the documents that will determine the answer, then applies the tests in the order that matters: the state ABC test where one applies, the FLSA economic reality test, the common law control test for tax and benefits, and the state-specific unemployment and workers compensation standards. Later phases cover the second classification question employers often forget, which is whether workers already classified as employees are correctly treated as exempt, and the practical mechanics of remediation, including reclassification without creating an admission and the voluntary programs that reduce back-tax exposure.
Conducting a Workplace Harassment Investigation: A Practical Guide
A workplace investigation is a legal proceeding conducted by non-lawyers under time pressure, and its quality determines whether an employer has a defense or a document that will be read to a jury. This guide covers the process end to end: why the investigation matters legally and what the Faragher-Ellerth defense actually requires, how to receive and triage a complaint, what interim measures are appropriate and which create retaliation exposure, who should investigate and how privilege works, how to plan and conduct interviews, how to assess credibility and make findings, what belongs in a report and what does not, and how to close the loop with remedial action and follow-up. It also addresses the harder situations: anonymous complaints, executive respondents, conduct that may be criminal, and unionized workforces. The recurring lesson is that promptness, independence, and a report written as though a jury will read it are what turn an investigation into a defense rather than an exhibit.