NY Department of Labor Audit and Misclassification of Worker Lawyer Blog Series
Our Award Winning Employment Law Attorney is often asked about the proper classification of workers and prior blogs have discussed this topic in general. Today’s blog post will discuss the status of tour guides and whether a worker should be treated as an employee or a contractor. Each case is unique and these cases are very fact specific so you are urged to consult an employment law attorney regarding your particular circumstances. In New York, there are many companies who use tour guides as part of escorted journeys as part of their business model (on a bike, bus or by walking) or for discrete special events. If a Company makes an error in classifying its workers and treated them as contractors instead of as employees, the unintended consequences can be tremendous. For example, companies may be subject to claims by the workers for overtime pay, employee benefits, employee compensation and claims for inappropriate tax treatment. Furthermore, the company may face fines and penalties from state and federal governmental agencies. This is an area where the government agencies are increasing their enforcement efforts so it is important for companies to understand their compliance obligations proactively before an Department of Labor (“DOL”) audit or other action is commenced.
The DOL has stated that the following are strong indicators (but not dispositive) that a tour guide is a contractor: