The misclassification of nurses and nurse practitioners as \u201c1099 employees\u201d 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\u2011to\u2011day operations as contractors is exceedingly risky under both federal and Virginia law.<\/p>\n\n\n\n
In Chavez\u2011DeRemer v. Medical Staffing of America, LLC d\/b\/a Steadfast Medical Staffing<\/em>, the U.S. Court of Appeals for the Fourth Circuit recently affirmed a judgment against a Virginia\u2011based staffing company that had treated more than 1,000 nurses and nursing assistants as independent contractors. The Department of Labor\u2019s investigation showed that the staffing company required the workers to complete an \u201cemployment\u201d application, controlled their schedules and rates of pay, placed non\u2011compete restrictions on them, and provided liability and workers\u2019 compensation coverage, all while paying them on a day\u2011rate basis without overtime.<\/p>\n\n\n\n Applying the familiar \u201ceconomic realities\u201d test, the Fourth Circuit agreed that the nurses were economically dependent on the staffing company.\u00a0 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\u2011based; and the nursing services were integral to the company\u2019s business. The mere label of an \u201cindependent contractor agreement\u201d did not defeat entitlement to overtime under the Fair Labor Standards Act.<\/p>\n\n\n\n Virginia has layered an additional level of protection on top of these federal standards under Va. Code \u00a7 40.1\u201128.7:7, its worker\u2011misclassification 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\u2011contractor 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\u2019s fees and costs.\u00a0 Employers also may face additional exposure for unpaid taxes, workers\u2019 compensation, and unemployment contributions.<\/p>\n\n\n\n For nurses and nurse practitioners working in Virginia, where the actual working relationship reflects employee\u2011like control and dependence, the law presumptively treats the clinician as an employee regardless of the employer\u2019s efforts to shift \u201cemployee\u201d expenses using a 1099 contract structure.\u00a0To support legitimate independent\u2011contractor 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.<\/p>\n\n\n\n dsgordonlaw.com<\/p>\n\n\n\n Richmond Employment Lawyer<\/p>\n","protected":false},"excerpt":{"rendered":" The misclassification of nurses and nurse practitioners as \u201c1099 employees\u201d 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\u2011to\u2011day operations as … Continue reading