Why a Waiver of Consequential Damages is a Must

Kelly Potter, CIC, PWCA
Many contracts I review include an express obligation for a design firm to be responsible for consequential damages. Consequential damages are often defined as “indirect damages” and can include things completely out of proportion to an architect or engineer’s fee. This can be very problematic as these damages may include loss of use or loss of profits, and they can be excluded from your Professional Liability policy.

Even if a contract remains silent about consequential damages, a firm can still be liable for them. Best practices for design firm contract reviews should be to initially delete any client-drafted provisions that hold you responsible for consequential damages.  However, a firm should not stop there.  A provision should then be added to the contract that clearly states that neither the design firm nor client will be responsible for consequential damages due to any alleged failures by either party.

Please note, contract review services are provided from an insurance perspective only and do not constitute legal advice. 

Succession Planning: The Potential Impact on Your Surety Program

Jase Hamilton, CPCU, AFSB
All contractors start their business with a common vision:  To create a successful construction company.  However, once this goal is realized, many owners fail to properly and strategically create a succession plan that not only guarantees their own continued prosperity, but also the prosperity of their company. This is because most business owners lack the incentive to develop a plan until it becomes an immediate need. Unfortunately, this reactive approach, more often than not, results in a poor, costly and ineffective plan.

When developing a succession plan, there is one important question you must ask yourself: Who will my successor be? The answer to this question becomes even more critical for a public works contractor, as it not only has a lasting impact on the legacy of your company, but also an impact on the company’s ability to obtain surety credit once you transition out.

Finding a Successor

Finding a successor for your plan can be difficult. The three most common sources are family members or key employee(s), company employees through an employee stock ownership plan (ESOP), or an external party.  Regardless of your situation, identifying a successor and transitioning the company is a critical milestone that takes years to properly plan.

Family Member or Key Employee(s)

Most small- to mid-size construction companies are family-owned and operated. The transition of ownership to a family member or key employee(s) seems like a natural choice. It not only ensures the company is being transferred to a trusted individual but, in most cases, has the least impact on the company’s surety credit.

Although the most natural, transitioning to a family member or key employee(s) is also one of the most difficult succession plans to develop. Current ownership must invest a significant amount of time and energy in grooming the next generation to lead the company. The earlier ownership can identify a younger family member or key employee(s) as an apparent heir, the better. This allows current ownership time to appoint the heir as “second in command” in the early growth stages of the company. Not only giving the heir valuable hands-on experience but ensuring he/she will operate the company the way current ownership wants it operated and lead the company the way current ownership wants them to lead. This will also give ownership the opportunity to fully evaluate the capabilities of the heir and consider a different direction in the event the heir is not a fit.

It’s also important to involve your trusted advisors early in the process.  From a surety broker perspective, it is critical to evaluate a succession plan to help develop and prepare for milestones during the process. This also provides the opportunity to educate the heir apparent on not only the importance of surety credit for the operation, but also the personal guarantees and obligation that are inherent with ownership.

If properly planned, the transition to a family member or key employee(s) can be very rewarding and seamless. The goal is to preserve the financial strength of the company so that it may continue to obtain surety credit, and to fulfill the personal financial goals of the transitioning ownership.

Forming an ESOP

In the event transition to a family member/key employee(s) is not an option, another succession strategy that is increasing in popularity is the formation of an ESOP. Much like a 401K plan or profit-sharing plan, an ESOP is a vehicle that allows for employees to invest in a company’s stock through the purchase, a loan or gift.  Essentially it allows an employee to obtain shares and become a shareholder/owner of a company.

Outside of incentivizing or rewarding faithful employees, one of the more appealing benefits of forming an ESOP is that it gives current ownership the opportunity to quickly liquidate their shares in the company to the ESOP. However, this liquidation or structural shift can have significant impact on a company’s ability to obtain surety credit.

Typically, when an ESOP is formed, the company takes on a loan or other form of liability to initially purchase the stock from the existing shareholder(s). Over time, the debt is paid down; however, the immediate liability usually has a negative impact on the company’s financial condition and could reduce the company’s overall bonding capacity. Successful ESOPs prepare for this potential shift on the balance sheet by maintaining personal indemnity of previous owner(s) to ensure high levels of cash flow, and taking advantage of the various tax benefits to provide an immediate stimulant to bottom-line profits.

From a surety perspective, another potential risk with an ESOP is adequate transition of leadership. In contrast to transitioning ownership to a family member or key employee(s), formation of an ESOP usually requires less effort grooming a successor and leader for the company. This can lead to potential operational issues and concerns over perpetuation. To lessen these concerns, invite you surety partner to participate in the plan early and illustrate the continued involvement and long-term commitment of key employees under the plan.

Forming an ESOP may not be for every company but, if thoroughly planned with the advice of a CPA and surety partner, it can be an effective succession plan for any business owner.

Third Party

Venturing into the merger and acquisitions market may be intimidating or a less desired succession plan for some, especially when talking about legacy or employee assurance. However, much like the other succession strategies and if properly planned, selling your company can be very profitable and still ensure specific commitments are supported.

The first thing to do is partner with a business broker. Just like any advisor, it’s important to interview multiple candidates to ensure you find the right partner that understands your business and succession plan. The next step is to work with your advisors to determine what valuation approach makes the most sense.

There are various elements to consider when evaluating your company, from current market conditions to cost-base analysis and future income projects. Understanding these and other valuation methods are critical to maximizing the value of your company.

Finally, an agreement that defines your desires and demands needs to be formalized.  Some examples include:  Whether there’s a commitment from you to oversee operations for a period of time after the sale, guaranteeing specific key employees maintain their roles within the organization; how the purchase is realized over time; and if the purchase incorporates additional future profit sharing or other considerations.

When discussing the prospect of selling with you surety partners, it’s important to fully disclose your plan and utilize them as a resource to analyze the viability of the sale and the potential buyer. Many contractors undervalue the resources their surety partners can provide during this process, which ultimately can hurt the company’s ability to obtain surety credit after the sale.

The End of a Journey

Succession planning is a topic most owners like to avoid. For many, it signifies the culmination of your life’s work and it’s easier to ignore and put it off until it’s absolutely necessary. However, failing to effectively develop a detailed plan can have grave consequences, not only for your company but for yourself and your family.

Work with your advisors to develop a well thought-out and comprehensive succession plan. The process may take years, but if done right, it can ensure the continued success and legacy of your company for you and your family.

Does the New California Security Act Apply to Your Business?

Matt Slakoff, CIC, CRIS
Businesses face many risks.  Changes in laws and increases in liability need to be understood to ensure compliance.

There is a new strict law, effective January 1, 2020, that may apply to your company if it meets the following criteria:

  • Gross revenue above $25 million
  • Annually purchases (alone or in combination) personal information of at least 50,000 consumers
  • Derives 50% or more of its annual revenue from selling personal information

California SB 561 is a sweeping new law that leaves little room for interpretation.  The intent of the legislation is to bring clarity to the California Consumer Privacy Act (CCPA).

This Bill proposes three amendments to the CCPA.

  1. Any violation of any provision of this act would allow a consumer to seek damages directly with the offending company – This bypasses the step of the Attorney General being the primary party responsible for enforcement. This could lead to more lawsuits aimed at businesses.
  2. A “Right to Cure” provision will be removed which would have allowed a business the opportunity to remedy an alleged violation of the law with a 30-day notice.
  3. A provision is removed that allows

Links to Information on the CCPA:

https://www.irmi.com/articles/expert-commentary/a-summary-of-ccpa-of-2018

A comprehensive risk management assessment including the evaluation of cyber liability can help ensure your company’s continuity in the event of an incident that breaches these new laws.

7 Habits of Highly Successful Insureds

Paul Broussard, cyRM
The emphasis in commercial insurance is typically what an insurance broker can do for your insurance and risk management needs. However, if business owners were more informed insureds, they’d have better success with their insurance program. With that being said, a Highly Successful Insured will…

1. Select, Then Trust Their Broker

From a new business just looking to procure insurance for the first time, to a large national company, far too often I see businesses try to pit several insurance brokers against each other in order to find the best insurance program for the best price. Their belief is that if they get 2 or more brokers to compete for their insurance program, they’ll get the lowest price available. Pitting two brokers in competition against one another to deliver the best result is not much different than having two CPAs prepare their taxes or having two attorneys represent them in a legal battle, and then choosing to compensate the one that brings the best result in that isolated scenario—it just doesn’t make sense. The marketing process becomes convoluted with multiple brokers in the marketplace. Underwriters get multiple submissions which each describe the business operations differently, and inevitably, no matter how much verification they do, the underwriter may still feel uncomfortable with believing what one broker says over the other and will tend to err on the side of caution.

Ultimately, an insured should want their business portrayed in the best light, while still insuring for their prevalent exposures. If multiple brokers tell different stories, the underwriter will be cautious and choose to focus on the description that paints the insured in the worst light. For instance, one broker representing an insured in a risky industry will take the time to explain to the underwriters why this insured is considered best in class—they will give a narrative of their operations and claims history, while another broker may simply let the underwriters assume their operations are identical to the rest of the industry.

Instead, a successful insured considers his insurance broker as a valued advisor—a balancing leg of their advisory stool, next to their attorney and their accountant. A successful insured researches, interviews, or gets referred their advisors, and then trusts them to manage and control their total cost of risk.

2. Understand That Price Is the Easy Part

Why do you buy insurance at the end of the day? It’s not because you want to buy it like you would want to buy a luxury sports car–But insurance isn’t a commodity, so why do insureds treat it as such?

Price is the easiest part to get to—all you have to do is eliminate coverage to reduce the cost. One broker may have a better price for your insurance program, but price isn’t the reason why you buy insurance is it? Sure, you may buy insurance because it’s statutorily required by the state like your auto or work comp insurance. It may even be required by your contracts like general liability or professional liability coverage, but at the end of the day, you don’t buy insurance because it’s a good deal, do you? At the end of the day, you don’t buy insurance for price—you buy insurance for coverage, and you expect it to work when you need it.

So if you’re looking at price alone, ask yourself why it’s that price. Is it because there are several exclusions on the policy that limit the scope of coverage? Or even worse, you find out after a claim that your operation wasn’t accurately described by your broker, and because the strict carrier they placed you with never contemplated that exposure when they underwrote the risk, they deny the claim due to material misrepresentation of the facts. Don’t get me wrong, price is important as it protects your bottom line, but if your policy doesn’t work the way it’s intended to, then what good is the price you paid? A successful insured knows that an uncovered claim will be a lot more devastating to their bottom line than the price of their quality insurance program.

3. Know that More Information Is Better

Brokers often get a request to quote insurance based only on the name of the business and their industry. A knowledgeable broker will ask questions about their insureds, and a successful insured understands that the more information they give, the better. It pays to take the time to answer the questions truthfully and thoroughly.

For example, you could say that you want to insure a fleet of vehicles—you could supply the types of vehicles and the driver information which is about all that it takes to get a quote. However, you might get a much better result if you let your broker know that each driver is highly vetted, has to complete a thorough training with experienced drivers, and that each vehicle is equipped with a backup camera.

In the same way, if you omit a small part of your operation because riskier than your main operation, then you may be inadvertently barring yourself from coverage. As risk managers, we want to make sure that you are properly covered at the end of the day, and we can only use the information available to us. If your website advertises to your customers that you perform certain services, then an underwriter can only assume that your business carries out those services. If, in fact, you haven’t performed those services in years or that you subcontract those services to insured third parties, then that is a completely different story and makes you more insurable. A successful insured knows that more information is better.

4. Not Market Their Insurance Every Year

Most insureds believe that their insurance program needs to be marketed every year to every insurance company in order to make sure that they are receiving the best rate. While that is certainly a common thought (even for some insurance brokers), it doesn’t necessarily achieve the best long term results for an insured. Insurance companies request 5 years of historical loss (claims) history, and when they review that history, they see how long an insured has stayed with each insurance company. If they see that an insured has changed insurers every year, they can only assume that they are switching for price and that the same fate will happen to them at next year’s renewal. Because they can only reasonably expect to have the insured for one year, they can’t get aggressive with their rating because one small loss may ruin the account’s loss ratio (the ratio of claims to premium). However, if an underwriter sees that an insured has only had one insurer in the past 5 years, they can get aggressive with their rating knowing that even if they have to pay out on a small claim, it’s more than likely they’ll have a number of claims-free years to more than make up for it.

If an underwriter believes they may only have an insured for one year, they won’t spend time getting to know and understand the risk. As an insured, you want to put yourself in the best position you can with every underwriter that sees your submission. You want every underwriter to take their time to feel comfortable with the risk, and your submission needs to be worth their attention. If an underwriter sees your submission every single year, but never writes your insurance program, then the underwriter will leave it at the bottom of the stack year after year.

Insurance companies retain a file of every account’s loss history from previous years. So, if you had a particularly large claim six years ago that doesn’t show up on your five-year loss history, the company will still have knowledge of that large claim. They rarely choose to ignore a significant claim, even if it’s not within the last five years. It is no longer a question of what rate you will receive, but if you will receive any quote at all. Is it really worth every company seeing your loss history each year if the renewal is only 1%-2% more than last year?  An informed, successful insured knows the value of strategically marketing their insurance program only when it’s warranted.

5. Invest in Risk Management

Insureds that take control of their risk management program tend to have better results than those that do not. If you’re not investing in risk management, your total cost of risk will be left up to chance alone. Your total cost of risk is comprised of insurance premiums, deductibles, self-insured exposures, risk management expenses, and even uncovered claims.

Insurance companies make loss control recommendations because they have access to the law of large numbers, and with the law of large numbers, they know the risk management techniques that provide results. When an insured implements risk management procedures, they’ll usually receive better terms, which will reduce their expenses. A successful insured understands the value of risk management and implements risk management procedures in their business.

6. Not Use Insurance as an ATM

The purpose of insurance is to indemnify. The principle of indemnity is to return the insured to the same financial position they enjoyed immediately before the loss—no more and no less. However, if an insured uses the insurance policy like a home warranty, they will experience complications at each renewal. You might think that a couple of small claims here and there might not make much of a difference. If you pay the premiums, you should be getting the benefit of the claim payments if you experience a loss, right? Frequent and small claims, while seemingly harmless, give underwriters insight into the operations of an insured that might indicate a lack of commitment to safety or risk management.

Furthermore, small claims add up over time, and they dwindle down the loss ratio of an insured, which essentially means the profitability of an insured over time. For instance, you may think that on a $10,000 annual premium policy, two $3,000 claims in a policy year would still make the insurance company a $4,000 profit. However, the administrative expense of the two claims, not to mention the underwriting expenses, loss control expenses, and normal overhead experienced by any business, might amount to well over $10,000 annually. Because of this, you may be surprised when that $10,000 premium is now $12,000 at renewal.

Typically, a carrier likes to see the loss ratios less than 40% on a 5-year basis, with loss ratios between 40%-60% usually making accounts unprofitable depending on the insurance company. If your loss ratio is over 60%, you are almost assuredly unprofitable for any insurance company. An insurance company is not unlike your business—if you were losing money by spending too much time or resources on a specific client, you would either raise their rates or stop doing business with them. With that being said, a successful insured knows that insurance is for catastrophic losses and does not use their insurance policy as an ATM.

7. Use Their Broker as a Key Advisor in Business Decisions

Insureds often get advice from several sources before reaching out to their insurance advisor. They may consult with their attorney and their accountant to see how a business decision will affect them from a legal or tax standpoint. They may have already done a feasibility and profitability analysis on a new business operation, but their last thought is usually how this change might affect their insurance. A change in operation may need to be cleared by the insurance company before the new operations are carried out. There could be pricing implications as well depending on how risky the new operation is in comparison to the current operation. If the profitability analysis was initially positive, it may not make sense now.

Insurance companies have certain appetites for industries and risks within those industries. Your current insurance company may not want to provide coverage for your new risk, but another insurance company might have an appetite for the new risk. With enough time, your insurance advisor will have the ability to re-market your business based on the new exposure. Any change in pricing, terms, and conditions will be well communicated to you so that you can make an informed business decision. For that reason, a successful insured will use their insurance broker as a trusted advisor in their business decisions.

Food Delivery Apps Pose New Risks for the Restaurant Industry

Matt Evans, CISR, CLCS, CRIS
The food service industry is changing with the emergence of third-party food delivery apps in recent years. More and more people are opting to stay in and order food from a delivery app rather than driving to the restaurant. Restaurants are partnering with companies like Postmates, UberEats and Door Dash in hopes of capturing the growing demand for convenience and additional sales. So what’s the problem?

The problem is that restaurant owners could potentially be taking on unanticipated liability by the partnership. While the reputable food delivery services require copies of their drivers’ personal auto policies, limit requirements can vary from service to service. Furthermore, certain personal auto policies exclude using personal vehicles for business purposes, or more specifically, delivery driving. Now you have a situation where a third party is delivering food for your business, with potentially low limits and/or a possible business use exclusion on their policy.

Imagine now that driver hits and kills a pedestrian while making a delivery from your restaurant. Someone will have to pay for the damages, but who? The most common phrase in insurance is, “it depends.” It will depend on the language of the agreement between you (the restaurant owner) and the delivery service.

If you are a restaurant owner and use a third-party delivery service it is imperative that you have the contractual language reviewed by your insurance broker in order to understand how the third-party companies’ insurance will respond in the event of a claim.

Water Damage: Are You Covered?

Preston Cavignac, CPCU, CIC, CRM
Water damage is one of the most misunderstood coverages when it comes to commercial insurance policies. Most think that water is a covered peril if their policy contains “full coverage.” Be wary of this term. “Full coverage” does not exist under any policy; it’s a term that is too often used by marketing departments of large insurance companies to sell “higher quality” policies. Coverage will always be subject to the terms and conditions of the policy and every policy has exclusions. In this article, we will be looking at the standard ISO CP 10 30 10 12 Causes of Loss – Special Form, specifically the coverage of Water Damage.

The CP 10 30 is special form policy. This means all perils are covered except for those specifically listed as excluded. This is different than named peril policies which only give you coverage for those specific perils which are named. Under the CP 1030 B.1.g. “water” is excluded. The form states:

  • We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss.
    • Water
      • (1) Flood, surface water, waves, tides, tidal water, overflow of any body of water, or spray from any of these, all whether or not driven by wind.

This exclusion also removes coverage for mudslides, water that backs up from a sewer, drain or sump, water underground pressing on or seeping through any property, etc.

However, water damage is defined later in the policy. It is defined under the definition of Specified Causes of Loss. Under this section, water damage means:

  • (1) Accidental discharge or leakage of water or steam as the direct result of the breaking apart or cracking of a plumbing, heating, air conditioning or other system or appliance (other than a sump system including its related equipment and parts), that is located on the described premises and contains water or steam;
  • (2) accidental discharge or leakage of water or waterborne material as the direct result of the breaking apart or cracking of a water or sewer pipe that is located off the described premises and is part of a municipal potable water supply system or municipal sanitary sewer system, if the breakage or cracking is caused by wear and tear.

The section also explains that water damage does not include loss or damage otherwise excluded under terms of the “Water Exclusion.” However, to the extent that accidental discharge or leakage of water falls within the criteria of this definition, such water is not subject to the provisions of the water exclusion, which preclude coverage for surface water or water under the surface of the ground.

Confusing? Yes! Water damage is difficult to understand. If water is a concern, a flood policy should be considered. These policies can cover additional water losses in addition to the standard flood coverage. To get a better understanding of water damage and what is included in your policy, call your broker to discuss your property and the types of water loss that may be of concern.

Educating and Protecting Your Children From Cyber Risks

Carolyn Konecki, CPRM, Private Client Manager
Families rely on technology to simplify their lives and keep them connected. The use of multiple devices and smart home systems means more and more individuals have access to their personal data. Cyber crime and the breach of this confidential information poses the greatest risk to your family’s financial data and assets.

While corporate attacks get the most media attention, successful individuals and families need to be vigilant about cyber security. Many parents practice good cyber hygiene but forget to educate and protect their children against cyber threats and the children can inadvertently put the entire household at risk.

Children are more trusting than adults. They can unintentionally engage with cyber thieves in gaming situations, or bypass security to view sites their parents don’t want them to see. Many children are far ahead of their parents’ ability to keep them from making mischief online – in fact many of them are the family’s tech support.  Here are some tips:

  • Never talk to strangers, even online. Some people you meet online may not be who they say they are.
  • Avoid accessing public WiFi networks. Even those that require a password are not secure. Similarly, be cautious of WiFi spoofing on your home network.
  • Whether playing a game or using social media, never share any personally identifiable information. Use a nickname rather than your real name. Set your profile to private so that only your friends can see it. Avoid sharing information such as your full name, address, mobile number, school and photos.
  • Never give out your password.
  • Be cautious when clicking. To avoid the possibility of inadvertently installing malware, be cautious of the links you click on when using social media.
  • Don’t access offers that sound too good to be true.
  • Don’t commit or tolerate cyber bullying.
  • Use caution when downloading files.

Three Steps to Making Cybersecurity a Company-Wide Priority

Kelly Potter, CIC, PWCA
  1. Leadership Buy-in:  The management team at your company must recognize the importance of cybersecurity.  Risk assessments and standard operating procedures need to be implemented and discussed at regular leadership meetings.  Cybersecurity is no longer just an IT issue; it needs to be a “boardroom” issue.
  2. Create a Culture of Cybersecurity:  Promote awareness and make cybersecurity a regular part of company conversation.  Training your staff once a year will no longer cut it. There should be regular discussions on new and emerging cyber risks and reminders on cyber security best practices.
  3. Training:  Staff training is a necessity.  It only takes one “weak-link” employee to potentially open your business up to substantial risk.  Your cyber liability insurance company, insurance broker or IT professional should be able to assist you in finding the right training to address your cyber risk exposures.  Ransomware, phishing, password management, access controls and mobile device management should all be addressed.

 

Group Captives for Employee Benefits

Matt Noonan, CIC, RHU, CHRS, CCWS
Group Captives for Employee Benefits

A group captive is a strategy that can reduce risk and volatility essentially making self-insurance more feasible.  As health care costs continue to rise, employers are looking for alternative risk financing solutions that can give them more control. Group captives could make the difference.

What’s driving the costs in health care?

  • Demographics
  • Government policy and regulation
  • Social factors and lifestyle
  • General inflation
  • Drug spending
  • Medical technology and innovation

Add to the trend provider megamergers, physician consolidation and the epidemic of preventable diseases.  The four leading causes of death are heart disease, cancer, chronic obstructive pulmonary disorder, and stroke.  Chronic diseases cause all of them.

Group Health Risk Financing Options

Today there are four popular models for group health risk financing.  Each has its own pros and cons.

  • Fully-insured
  • Level-funded
  • Self-insured
  • Captive

The basic structure of a group captive is a symbiotic relationship between the employer, the captive and the insurance carrier.

Each employer has its own Third-Party Administrator to handle its own claims processing, ID cards, and preferred provider contracts and each employer is responsible for covering its smaller more predictable claims.

Each employer then pays into the group captive “pool” to cover medium-sized claims.  If the dollar amount of these pooled claim payouts exceeds the amount that has been put into the pool, the group shares the loss (up to certain thresholds).  Likewise, if the pool payouts are less than the balance in the pool, the group shares the profit.

Each employer pays an insurance company a premium to cover the unpredictable large catastrophic claims.  The insurance company provides protection in cases where an individual’s claims exceeds an annual cap, or the aggregate of all claims exceeds an annual cap.

Since the group captive model provides the employer with transparency of claims and expenses, it quickly becomes clear that the employer/administrator can take action to have an impact on the overall costs.

Health risk management is where we can make a positive impact on our employees and our health care spend over the long-term.  Population health management methods like those listed below should be a requirement for your group captive for the purposes of promoting better outcomes while controlling costs and attracting like-minded members into the group captive.

  • Health Risk Assessments & Biometric Screenings
  • Plan Design
  • Pricing Transparency
  • Financial Incentives
  • Disease Management
  • Telemedicine
  • Onsite Clinics
  • Health Advocacy

Employee benefit group captives give small- to mid-sized employers a way to gain control of the cost of employee benefits.  When employee claims are extensive, your group captive absorbs the shock.  When employee claims are modest, you essentially pocket a portion of the profit that would normally have gone to an insurance carrier.

Entering a benefits group captive is more complicated than simply buying traditional group health insurance.  Membership requires on-going active involvement and should be considered a long-term commitment, however, for the right business it can allow you to take control and strike the right balance between cost and volatility.  The first step is to conduct a risk assessment and captive feasibility study to consider if a benefits group captive is right for you.

Workers Compensation: New Independent Contractor Test May Impact Your Business

On April 30, 2018, the California Supreme Court issued a decision that clearly makes it harder now to label workers as “independent contractors” under Industrial Welfare Commission (IWC) wage orders. The result: Workers Compensation audits in California will be more scrutinized in the future against employers attempting to classify workers as independent contractors vs. employees.

The new ruling is clear: The label an employer chooses, or the label used in a contract, does not matter in classifying a worker. Instead, the type of work performed matters.

The Supreme Court placed the burden on an employer seeking to classify an individual as an independent contractor instead of an employee to satisfy a three-factor test. Workers have long been presumed to be employees unless the employer proves all three factors that the worker:

1) is not under the control of the employer;

2) performs work outside of the usual course of business; and

3) is in a customarily independent trade.

The ruling stemmed from a class action lawsuit by delivery drivers against a package and document delivery company. The drivers alleged that the document delivery company misclassified drivers as independent contractors, and therefore violated an IWC Wage Order and engaged in unfair business practices.

The Supreme Court evaluated the core issues related to the appropriate legal standards for determining if a worker is an employee or an independent contractor. The Supreme Court agreed with the drivers. The Court adopted a three-factor “ABC” test that the company must satisfy in order to establish that a worker is an independent contractor:

  1. The worker is free from the control and direction of the hiring entity in the performance of the work, both under the contract calling for the performance of work and in fact;
  2. The worker performs outside the usual course of the hiring entity’s business; and
  3. The worker is customarily engaged in an independently-established trade, occupation, or business of the same nature as the work performed for the hiring entity.

The Court held that the failure of the company to prove any one of these factors is grounds to establish that the worker is an employee.

As we know, all California employers are subject to IWC wage orders. This court decision will have substantial consequences on some employers, particularly those that involve transportation activities, like contractors that have trucking operations. Misclassification of employees as independent contractors can result in significant liability for employers; labor code penalties as high as $25,000 per violation, payroll tax, overtime, unemployment benefits, and of course workers compensation premiums.

We recommend consulting with your labor attorney and insurance professional to assure your workers are properly classified.