The misclassification of nurses and nurse practitioners as “1099 employees” is drawing intense scrutiny in Virginia and across the country. For medical practices, staffing agencies, and facilities, classifying RNs, LPNs, or NPs who function like employees in day‑to‑day operations as contractors is exceedingly risky under both federal and Virginia law.
In Chavez‑DeRemer v. Medical Staffing of America, LLC d/b/a Steadfast Medical Staffing, the U.S. Court of Appeals for the Fourth Circuit recently affirmed a judgment against a Virginia‑based staffing company that had treated more than 1,000 nurses and nursing assistants as independent contractors. The Department of Labor’s investigation showed that the staffing company required the workers to complete an “employment” application, controlled their schedules and rates of pay, placed non‑compete restrictions on them, and provided liability and workers’ compensation coverage, all while paying them on a day‑rate basis without overtime.
Applying the familiar “economic realities” test, the Fourth Circuit agreed that the nurses were economically dependent on the staffing company. The business exerted extensive control over their work; the nurses had minimal opportunity for profit or loss beyond working more hours; the nurses own capital investment was negligible; the relationship was ongoing rather than project‑based; and the nursing services were integral to the company’s business. The mere label of an “independent contractor agreement” did not defeat entitlement to overtime under the Fair Labor Standards Act.
Virginia has layered an additional level of protection on top of these federal standards under Va. Code § 40.1‑28.7:7, its worker‑misclassification statute. Virginia law creates a presumption that anyone paid to perform services is an employee of the payor unless the putative employer can prove independent‑contractor status under IRS guidelines, effectively shifting the burden of proof onto the practice or staffing agency that wants to classify a clinician as 1099. A misclassified worker can sue for lost wages, salary, benefits, plus reasonable attorney’s fees and costs. Employers also may face additional exposure for unpaid taxes, workers’ compensation, and unemployment contributions.
For nurses and nurse practitioners working in Virginia, where the actual working relationship reflects employee‑like control and dependence, the law presumptively treats the clinician as an employee regardless of the employer’s efforts to shift “employee” expenses using a 1099 contract structure. To support legitimate independent‑contractor status, the clinician ideally would operate a real business with multiple clients, exercise meaningful control over when and how work is performed, bear some entrepreneurial risk, and avoid restraints that tether them to a single entity.
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