Double Extortion Ransomware Attacks

Double Extortion Ransomware Attacks

Double Extortion Ransomware Attacks

In recent years, ransomware attacks have steadily been on the rise. These incidents—which entail cybercriminals compromising a device or server and demanding a large payment be made before restoring the technology (as well as any data stored on it) for the victim—double extortion ransomware attacks are one of the most damaging cyberattack methods, incurring an average of $1 million in total losses per incident.

As these attacks become increasingly common, numerous ransomware techniques have also emerged. Specifically, double extortion ransomware attacks are now a potential cybersecurity concern for organizations across industry lines. This technique follows a similar protocol to that of a typical ransomware attack, but comes with an extra threat—the victim must pay a ransom not only to regain access to their technology and data, but also to keep that data from being uploaded publicly online.    

Double extortion ransomware attacks are particularly concerning, seeing as these incidents can further pressure organizations to comply with ransom demands in order to keep their data private. Review the following guidance to learn more about how double extortion ransomware attacks work and what your organization can do to prevent such an attack.

Double Extortion Ransomware Attacks

How Double Extortion Ransomware Attacks Work

To outline the general framework of a double extortion ransomware attack, this technique starts out like most other ransomware incidents, in which a cybercriminal first gains access to their target’s device or server—often via phishing scams, nonsecure websites or malicious attachments. From there, the cybercriminal is able to compromise the victim’s technology and encrypt data stored on it. Then, the cybercriminal delivers their ransom demand and accompanying consequences for noncompliance.

Contrary to a typical ransomware incident, however, these consequences are twofold. That is, failing to pay the ransom could result in the cybercriminal both permanently restricting the victim’s access to their technology and sensitive data, as well as sharing this data publicly on the internet. Although double extortion ransomware attacks can occur at any organization, these incidents are most common within establishments that store a considerable amount of sensitive data. This includes health care facilities, financial institutions, government organizations and large retail businesses.

Double extortion ransomware attacks can be significantly more damaging for affected organizations than typical ransomware incidents. This is because even if organizations have protocols in place (e.g., storing data in multiple secure locations) that allow them to recover their compromised information without paying a ransom, they may still be pressured to do so in order to keep their data from going public. After all, a data breach can lead to further ramifications—including reputational damages, regulatory fines and class action lawsuits.

What’s more, cybercriminals who conduct double extortion ransomware attacks are known to demand higher ransom payments, sell or trade stolen data to other attackers for future extortion attempts and still move forward with sharing data publicly even after the ransom is paid (whether on purpose or by accident)—making these attacks all the more damaging.

Preventing Double Extortion Ransomware Attacks

When it comes to combatting double extortion ransomware attacks, it’s important to prioritize standard ransomware prevention measures. This includes conducting routine employee training on how to detect potential ransomware risks (e.g., suspicious emails or attachments), implementing policies that prohibit browsing nonsecure websites on organizational servers or devices, and installing adequate security features on all workplace technology (e.g., a virtual private network, antivirus programs, data encryption software, email spam filters, an internet firewall and a patch management system).

In addition to these key prevention measures, the best course of action for reducing double extortion ransomware attack risks is to establish an effective cyber incident response plan for your organization. This plan should explicitly address double extortion ransomware attack scenarios and outline steps that employees should take to limit the damages during such an event.

Lastly, it’s vital to secure appropriate insurance coverage for ultimate peace of mind in the event of a ransomware attack. A dedicated cyber insurance policy can offer much-needed support and resources when an attack occurs, minimizing the potential damages and financial impact on your organization.

For additional risk management guidance and insurance solutions, contact us today.

California’s Leader in Insurance and Risk Management

As one of the fastest-growing agencies in California, GDI Insurance Agency, Inc. is able to provide its clients with the latest and greatest of what the insurance industry has to offer and much, much more. The GDI team has developed an “insurance cost reduction” quoting plan, that provides you with the best coverage at the best rate!

We are headquartered in Turlock, CA, with locations across the heart of California’s Central Valley, Northern California and beyond to provide a local feel to the solutions and services we provide our clients. We pride ourselves on exceeding our client’s expectations in every interaction to make sure that our client’s know how much we value and appreciate their business.

Contact us today 1-209-634-2929 for your comprehensive cyber liability insurance quote!

Direct and Indirect Workers’ Compensation Costs Explained

Direct and Indirect Workers’ Compensation Costs Explained

Direct and Indirect Workers’ Compensation Costs Explained

Workers’ compensation claims have a variety of different costs associated with them. Some of these costs are expected costs, while others are unexpected. Direct and indirect workers’ compensation costs explained, here’s the difference between these terms:

  • Expected costs are those that are covered by workers’ compensation insurance. Such expenses are commonly referred to as direct costs.
  • Unexpected costs are those that workers’ compensation insurance does not cover. These expenses are commonly referred to as indirect costs.

According to the Occupational Safety and Health Administration (OSHA), both direct and indirect costs can have a substantial impact on employers and their bottom lines. As such, it’s important for employers to understand the difference between direct and indirect costs, how to reduce these costs and why it’s important to do so.

 Direct and Indirect Workers' Compensation Costs

Direct vs. Indirect Costs

Direct and indirect costs are determined by which expenses workers’ compensation insurance will or will not cover. To reiterate, direct costs are those that are covered by such insurance, which can include:

  • Employee wage benefits—These benefits include temporary total, temporary partial, permanent partial and permanent total disability. Employers have to pay these benefits when an employee is unable to work or return to work in full capacity.
  • Medical payments—These payments refer to any medical costs needed to treat an employee’s injury.
  • Vocational rehabilitation costs—These expenses are any costs associated with an employee’s rehabilitation (e.g., training and career counseling).
  • Death/dependency benefits—These benefits are for the spouse or dependents of an employee who was killed by a work-related injury. Such benefits vary by state.
  • Legal fees—These fees include those associated with a workers’ compensation claim, any civil liability expenses and settlement costs.

Indirect costs for a workers’ compensation claim are those not covered by such insurance. These costs can vary depending on the extent of an employee’s injury. Some indirect costs include:Wage and hour costs—These additional costs are incurred by employees who must work extra hours to compensate for another employee’s time away from work. This includes hiring temporary workers or having employees work overtime to fill in for the missing worker.

  • HR support expenses—This includes the increased work and time incurred by individuals who handle workers’ compensation claims and related paperwork.
  • Claim investigation costs—This includes costs associated with the investigation of a workers’ compensation claim if there is a concern of fraud.
  • Hazard mitigation costs—This includes costs associated with mitigating the hazard(s) that caused an employee’s injury.
  • Production deadline extensions—An injured employee’s absence can cause delays in production, thus increasing production costs and negatively affecting business contracts.
  • Training expenses—This refers to the costs of training other employees to fill in for an injured employee if they are unable to return to work in their original capacity. This can be a temporary or permanent arrangement. If it’s permanent, the company may have to cover the costs of hiring a new employee.
  • OSHA fines—If an employee is injured or killed at work, an inspection will be triggered and the employer may be subject to OSHA citations for any safety issues found during the inspection. Also, the more employee injuries and fatalities an employer experiences, the higher their business’s incident rate will be—thus triggering more OSHA inspections.
  • Insurance premium expenses—The more injury-related costs an employer experiences, the higher their experience modification factor will be. As a result, their business may be considered high risk and could receive increased premium rates.
  • Repair costs—Repair expenses associated with property or equipment can also be considered indirect costs, depending on whether or not the property or equipment was involved in an injury-causing incident.
  • Workplace culture concerns—A company with a high rate of injury may encounter poor employee morale, particularly because employees may begin to think that their employer does not care about their well-being. Typically, the lower morale is within a company, the higher incident rates will be.
  • Reputational struggles—A company with a high rate of workers’ compensation claims can garner a bad reputation. With a poor reputation, business contracts and qualified workers may be difficult to secure. A bad reputation can negatively impact an employer’s bottom line and even lead to their business closing down altogether.

Controlling these direct and indirect costs can be beneficial for employers. That’s why it’s crucial to be proactive.

 Direct and Indirect Workers' Compensation Costs

Reducing Direct and Indirect Costs

It’s important for employers to understand that investing in their safety programs can positively affect the outcome of direct and indirect costs. For instance, managing safety programs at a business and having employees actively engage in hazard identification can reduce the likelihood of injuries. By reducing injuries, direct costs related to expenses such as wage benefits and medical payments will also decrease. This will, in turn, lower indirect costs as well. Having a successful safety program is the foundation of reducing workers’ compensation claims. If an employer cannot eliminate workers’ compensation claims, another way to reduce direct and indirect claims is to proactively manage claims. This can involve working with employees to get them back to work quicker after an injury and following up with claims handlers. Furthermore, participating in the claims process can improve communication between an employer and their employees, as well as the employer and their insurance company.

Having an effective return-to-work program can also help with reducing direct and indirect costs. Having other work options for employees that fit within their medical restrictions encourages employees to return to work quicker, thereby reducing a significant amount of direct and indirect costs.

The Importance of Reducing Direct and Indirect Workers’ Compensation Costs

Minimizing direct and indirect workers’ compensation costs is critical. By reducing injuries, a company can continue to function normally, avoid interruptions and prevent issues with production or business contracts.

According to the National Safety Council (NSC), work-related injury costs for employers in 2019 totaled $171 billion. This total can be broken down as follows:

  • $52.9 billion in wage and productivity losses
  • $35.5 billion in medical expenses
  • $59.7 billion in administrative expenses

Employers’ uninsured costs ($13.9 billion), property or equipment damage ($5 billion) and fire-related losses ($3.7 billion) also contributed to this total.

In breaking these costs down, the NSC found that such expenses came out to $1,100 per employee. Further, the average cost per fatality was $1.2 million, while the average cost of an injured employee’s medical treatment was $42,000.

Overall, by reducing employee injuries, employers can help create a positive work culture and lower workers’ compensation expenses— thus minimizing both direct and indirect costs.

Contact GDI Insurance Agency, Inc. to discuss your workers’ compensation needs.

California’s Leader in Insurance and Risk Management

As one of the fastest-growing agencies in California, GDI Insurance Agency, Inc. is able to provide its clients with the latest and greatest of what the insurance industry has to offer and much, much more. The GDI team has developed an “insurance cost reduction” quoting plan, that provides you with the best coverage at the best rate!

We are headquartered in Turlock, CA, with locations across the heart of California’s Central Valley, Northern California and beyond to provide a local feel to the solutions and services we provide our clients. We pride ourselves on exceeding our client’s expectations in every interaction to make sure that our client’s know how much we value and appreciate their business.

Contact us today 1-209-634-2929 for your comprehensive workers’ compensation insurance quote!

The Ins and Outs of Convenience Store Insurance

The Ins and Outs of Convenience Store Insurance

The Ins and Outs of Convenience Store Insurance

A steady flow of customers is great for business, but it also increases your risk of an accident. Convenience stores – and those with attached gas stations – have a particular list of risks that set you apart from regular retailers. A suite of convenience store insurance products specially tailored for your needs not only will provide broad protection but also will keep you in business even if you experience a big loss.

Today’s convenience stores sell a panoply of items – everything from packaged goods to alcohol to food prepared on the premises. Your shop may be attached to a gas station with or without a car wash, or you may exchange propane tanks, sell lottery tickets or provide an ATM. Each of these adds to your risk profile.

Let’s Look at Convenience Store Insurance Coverage.

Property damage (including store exterior and interior, plate glass, cooking/cooling appliances, gas pumps, canopies, car wash equipment and signs) Business property of others (including ATMs, DVD rentals or other partner products)

  • Harm to others (including damage to their cars or injury to their person)
  • Pollution liability (for those with fuel services)Fuel tank contamination
  • Foodborne illness (to cover food you prepare, heat or refrigerate)
  • Food spoilage (in case there is a power outage or refrigeration failure)
  • Loss of business income (often called business interruption insurance)
  • Theft of money and securities (this has only minimal coverage under most business owners policies
  • and commercial property coverage)
  • Sewage and drain backup

These hazards are in addition to your workers’ compensation insurance needs. You may also want to look at employment practices liability insurance and active shooter insurance. Although you try to maintain a safe workplace for your employees, bad actors can create serious threats at your worksite. Injuries incurred from mistreatment or violence might not be covered under workers’ compensation, so it’s important to talk to your insurance professional about these situations.

If you are one of those business owners who improve your community not only through great service but also with curbside appeal, you may have need of outdoor property coverage that goes beyond canopies and signs. That could include statues, seasonal displays, and even vintage vehicles. While these might not be covered by standard property and liability policies, they usually can be added by “endorsement,” an addendum to your insurance contract.

Convenience Store Insurance

Benefits of BOP and Program Insurance

A business owners policy (BOP) is a tidy way to bundle important insurance coverages like general liability, commercial property, equipment breakdown, and business income protection. You may also find an insurance program specifically designed for convenience stores is a good way to go. Such programs are built encompass most of the risks your operation will encounter.

They may be more affordable and expedient than getting a different stand-alone policy for each area of risk you face. Insurers or agencies that provide convenience store insurance programs usually also help with risk management in some way. Even the application for specialized coverage can raise your awareness of actions that will reduce your risk of losses.

For example, you will be required to provide an accounting of your safety protocols at your pumps, your car wash, your entrance/exit, your cash registers, your safe, and your parking lot. You will be asked about crime prevention measures, such as panic buttons at the cash register, ways you secure the building, how often you make bank deposits, what kind of security cameras you have, and how you guard ATMs and safes.

Your insurer will want to know about the background of your owners, management and employees to make sure there are no indications of criminal history. And if you are preparing food, you will need to report your fire-suppression protocols, your shut-off capabilities for cooking equipment, and your anti-burn protections for staff and customers.

Your cybersecurity will also be assessed since you will be transmitting financial data online and, in the case of rewards members, you will store or process personal identifiable information.

If you own more than one store, it is possible to secure coverage for multiple properties at once, and some policies are written to allow easy expansion of coverage to include newly acquired shops or additions to your current operations – for example, adding a car wash.

A Word About Liquor

A commercial general liability insurance policy typically excludes coverage for alcohol if the business generates a profit from its sale. That leaves an important gap in your coverage – and one that could be devastating for your business if someone were to suffer serious injury or death related to consumption of alcohol you sold.

Liquor liability insurance may be required in your state, but even if it isn’t, its protection is worth the cost. Defense attorney fees alone can run upwards of $100,000 in serious cases. The coverage can be added as an endorsement to your general liability insurance or purchased as a stand-alone product. Shops that have trained their staff on alcohol sales and enforce strict policies on ID checks are considered better risks, so make sure you have tight protocols in place and can document them.

California’s Leader in Insurance and Risk Management

As one of the fastest-growing agencies in California, GDI Insurance Agency, Inc. is able to provide its clients with the latest and greatest of what the insurance industry has to offer and much, much more. The GDI team has developed an “insurance cost reduction” quoting plan, that provides you with the best coverage at the best rate!

We are headquartered in Turlock, CA, with locations across the heart of California’s Central Valley, Northern California and beyond to provide a local feel to the solutions and services we provide our clients. We pride ourselves on exceeding our client’s expectations in every interaction to make sure that our client’s know how much we value and appreciate their business.

Contact us today 1-209-634-2929 for your comprehensive convenience store insurance quote!

Protecting Your Workforce Against an Active Shooter

Protecting Your Workforce Against an Active Shooter

Protecting Your Workforce Against an Active Shooter

According to the FBI, there was an active shooter event every 18 days in 2016. While workplace shootings have been historically rare, the Bureau of Labor Statistics notes that there was a sharp increase in 2016 in the number of office shootings, from 83 the previous year to 394. Shootings now account for the lion’s share of workplace homicides with 363 workplace shootings reported in 2019. Keeping your workforce safe against active shooters takes planning.

It’s your responsibility to provide a safe work environment, but what can you do when faced with the unthinkable? You can’t just rely on security guards and alarm systems. What you need is a solid plan that can be implemented during an active shooter situation to safeguard your employees.

Active Shooters

Monitor and React to an Active Shooter

Workplace violence and harassment policies provide a framework for addressing conflicts before they escalate. If these policies are well implemented, they will reduce the overall potential for violence by staff members.

It’s been proven that most active shooters display warning signs before resorting to guns. They will tend to isolate themselves, become increasingly despondent, forget to care for their hygiene, seem nervous, on the edge and impatient. They might seem harsh or quick to judge, prone to fits of anger or sadness, and often sick tired. In other words, their behavior changes in a way that should be noticeable to his or her colleagues.

Unfortunately, the Department of Homeland security reports that most active shooters had no ties with the place they targeted. Even if the active shooter isn’t a complete stranger, you may be powerless to pre-empt the situation if the shooter is a former employee, the spouse or partner of a staff member or a disgruntled customer who feels wronged by the company or its representatives.

Plan and Prepare

You’ll want to create a formal emergency response plan for dealing with an active shooter situation so that your staff knows clearly what to do when it happens. Having a policy in place is not enough to be well prepared. Train your employees, make it part of onboarding, and schedule drills. The FBI has active shooter resources on their website.

When confronted with a shooter, evacuation is always the first and best option. You’ll want to get as many people out of the building and to a safe location as possible, well away from the shooter. Your team needs to map out the fastest exit routes out of the building for each employee and provide alternate routes in case the planned escape route is blocked by the active shooters.

Employees will need to rehearse this often, much as they would a fire drill. Use a person dressed in orange to serve as the active shooter and block different routes. Monitor your staff’s progress and adapt the plan as needed. Employees should move quickly, though carefully, to their designated exit while doing their best not to be spotted by the shooter whose current location might elude them.

Active Shooters

Hide and Fight

Hiding comes next. If someone can’t leave the premises, they’ll want to find cover to shield them from any gunfire. That’s where preparedness on your part can make a big difference. Make sure each office door can be locked from the inside with deadbolts, door stops or other appropriate devices. Install blinds on windows. If the shooter cannot see inside the room, he will be less likely to enter.

Have your employees practice hiding by turning off the lights, locking the door, closing the curtains, shutting off computers and finding cover. During this exercise, pair employees so that one person acts as the “victim” and the other as an observer to evaluate their efficiency.

Finally, if the shooter is near and hiding is no longer an option, your employees must do what it takes to preserve their life. Some people believe they can do that by talking down an active shooter. That may be true for trained officials, but it is not a viable option for anyone on your team. Train your employees to avoid contact at all costs, stay hidden and quiet as long as possible, find a solid object, then attempt to disarm and render unconscious the perpetrator.

Train and Learn

Here are 8 tips to help you and your employees better prepare:

  1. Don’t forget to call 911, but only if it is safe to do so.
  2. Remind people to leave their belongings behind.
  3. Instruct your team to keep their hands visible as they leave the premises to show law
    enforcement they are not a threat.
  4. Tell your employees they can help others escape, as long as it doesn’t slow their own escape or
    put them in harm’s way. Leave the wounded where they are.
  5. Have your team warn people not to enter the area where the active shooter is thought to be
  6. If hiding, remind the person to remain quiet and silence their cell phone.
  7. If the active shooter is nearby, have the person call 911 to allow the dispatcher to listen in and
    locate the shooter.
  8. Finally, if action is required, tell the person to be as aggressive, threatening and decisive as they
    can be.

After an Active Shooter Incident

Seek professional help from trauma experts to promptly deal with the emotional and psychological impact of such an event. Most employees, even those who did not experience the incident first-hand, will need assistance dealing with the loss of close colleagues and the fear of returning to work.

You’ll also need to tally the physical property damage and business interruption expenses and provide assistance to your employees with their health-related claims.

It is your job to provide a safe work environment for your employees. That includes creating a smart active shooter plan. While you may never need to use it, preparing for such an event may save lives. If you need more information on protecting your workforce or creating active shooter policies, speak to you insurance professional; they can give you the guidance you need.

California’s Leader in Insurance and Risk Management

As one of the fastest-growing agencies in California, GDI Insurance Agency, Inc. is able to provide its clients with the latest and greatest of what the insurance industry has to offer and much, much more. The GDI team has developed an “insurance cost reduction” quoting plan, that provides you with the best coverage at the best rate!

We are headquartered in Turlock, CA, with locations across the heart of California’s Central Valley, Northern California and beyond to provide a local feel to the solutions and services we provide our clients. We pride ourselves on exceeding our client’s expectations in every interaction to make sure that our client’s know how much we value and appreciate their business.

Contact us today 1-209-634-2929 for your comprehensive business insurance quote!

Landscaper Gas Safety Tips

Landscaper Gas Safety Tips

Landscaper Gas Safety Tips

A wide range of landscaping equipment (e.g., mowers, trimmers and leaf blowers) is powered by gasoline. That’s why it’s crucial for employees to know how to properly manage this toxic, flammable form of fuel. After all, failure to store, transport or handle gasoline correctly could result in serious safety ramifications. Breathing in gasoline fumes can cause dizziness, nausea and disorientation, while gasoline fires can lead to severe burns and blisters. In the most severe cases, gasoline incidents can even result in death. Nevertheless, these concerns can be addressed with proper safeguards. You can help keep yourself and others safe when working with these landscaper gas safety tips at the job site by following these precautions.

Landscaper Gas Safety Tips

Selecting and Filling Gasoline Cans

First, it’s important to ensure that gasoline is kept in an approved gasoline can. Keeping gasoline in the wrong container increases the risk of the gasoline leaking or exploding from pressure over time.

Be sure to select a gasoline can that is made out of metal, holds 5 gallons or less and has a flame arrestor—which helps prevent sparks from traveling up the gasoline can’s nozzle. In addition, the gasoline can should be properly labeled with its contents. Never place anything other than gasoline in a labeled gasoline can.

Keep in mind that while plastic gasoline cans are common, they aren’t as safe as metal cans. Plastic cans will melt in the event of a fire, allowing the gasoline inside the can to escape and contribute to the spread of the flames.

When it’s time to fill your gasoline can, follow these landscaper gas safety steps:

  • Fill the can outdoors, on level ground and away from any ignition sources. Never fill a gasoline can inside a vehicle, as doing so could create a buildup of static electricity and set the gasoline can on fire.
  • Touch the can to the gasoline dispenser nozzle before removing the can lid. This will help reduce the risk of a static spark occurring during filling, which could ignite the gasoline in the can.
  • Keep the gasoline dispenser nozzle in close contact with the can inlet during filling—this practice will also help lower the risk of a static spark taking place.
  • If you spill any gasoline while filling, clean it up immediately. Bring extra work clothing to the job site in case you spill gasoline on yourself and need to change.
  • Because gasoline expands, it’s important to never fill the gasoline can above its maximum fill line. An overly full gasoline can is at greater risk of leaking or exploding.
  • When you are finished filling, replace the gasoline can lid and tighten it securely.

Transporting Gasoline Cans

When transporting gasoline cans, make sure you do so in a way that limits the spread of toxic gasoline fumes throughout the vehicle. Both full and empty gasoline cans should be placed far away from any passengers and the driver. The safest areas to place gasoline cans are within the vehicle bed or on a roof rack, if applicable. In any scenario, be sure to keep the cans secured in an upright position to avoid spills during transport.

Landscaper Gasoline Safety Tips and The Refueling Process

When refueling equipment with gasoline, follow these precautions:

  • Refuel the equipment outdoors, on level ground and away from any ignition sources. Allow the equipment’s engine to cool before you refuel, and loosen the fuel cap slowly to relieve pressure in the tank.
  • Remember to touch the gasoline can’s nozzle to the tank before removing the fuel cap to avoid a static spark from igniting the gasoline.
  • Keep the gasoline can’s nozzle in close contact with the tank to prevent spills. If you spill any gasoline, clean it up immediately. If you spill gasoline on yourself, change into your spare work clothing.
  • Pay close attention when filling the fuel tank—avoid overfilling it. When you are finished filling the tank, replace the fuel cap and tighten it securely.

Storing Gasoline Cans

When you are finished using gasoline, it’s vital to store it safely. Even though landscaping tasks can often require you to move between job sites, be sure to establish a secure location for storing gasoline cans. Although it might be tempting, you should never store gasoline cans—full or empty—in a vehicle. The best place to store gasoline cans is in a flammable liquid storage cabinet. Such a cabinet should be made of nonreactive metal, be able to remain at room temperature and be clearly labeled as a safe gasoline storage area.

Never block a flammable liquid storage cabinet’s doors, and avoid storing any items on top of the cabinet. Keep any sources of ignition and electronics at a safe distance from the cabinet. If you are ever unsure of where to store gasoline cans at work, consult your supervisor.

California’s Leader in Insurance and Risk Management

As one of the fastest-growing agencies in California, GDI Insurance Agency, Inc. is able to provide its clients with the latest and greatest of what the insurance industry has to offer and much, much more. The GDI team has developed an “insurance cost reduction” quoting plan, that provides you with the best coverage at the best rate!

We are headquartered in Turlock, CA, with locations across the heart of California’s Central Valley, Northern California and beyond to provide a local feel to the solutions and services we provide our clients. We pride ourselves on exceeding our client’s expectations in every interaction to make sure that our client’s know how much we value and appreciate their business.

Contact us today 1-209-634-2929 for your comprehensive landscape contractor insurance quote!

Status of the DOL’s Independent Contractor Rule

Status of the DOL’s Independent Contractor Rule

Status of the DOL’s Independent Contractor Rule

On March 11, 2021, the U.S. Department of Labor (DOL) announced a proposal to rescind the independent contractor final rule. The DOL’s Independent Contractor rule was published on Jan. 7, 2021 and is scheduled to become effective on May 7, 2021. The DOL’s position is that adopting the rule would significantly weaken worker protections under the Fair Labor Standards Act (FLSA).

Although the final rule’s effective date has technically not yet been canceled,  this proposal signals the DOL’s intention to roll back the worker classification test established by the rule at the end of President Donald Trump’s administration.

As a result, employers should continue to monitor DOL communications on this topic for updates regarding worker classification obligations.

 DOL’s Independent Contractor Rule

Importance of Worker Classification

Whether a worker is covered by a particular law or is entitled to receive a particular benefit often depends on whether the worker is an employee or an independent contractor. In general, employment laws, labor laws and related tax laws do not apply to independent contractors.

Misclassifying employees has become an increasing concern for governments, courts and regulatory agencies. Employers that misclassify employees can be liable for expensive fines and litigation if a worker should have been classified as an employee and did not receive a benefit or protection he or she was entitled to receive by law.

However, classifying workers as either employees or independent contractors is not always a simple or straightforward task. There is no single standard or test that applies to every situation where an employer will need to determine whether a worker is an employee who is protected by a particular law. As a result, courts and enforcement agencies have to rely on a variety of case law and regulatory guidance that change depending on the issue that brings the worker classification issue into question.

Commonly used tests for worker classification include:

  • The Common Law Agency Test: The common law agency test assumes that, unless there is a definition for “employee,” “employer” and “scope of employment,” these terms are best understood in the context of the common law principles of agency. These principles, addressed by courts over time, focus on whether the employer has the right to control the work and how it is done. This test is generally used for purposes of worker classification under the Copyright Act, Employee Retirement Income Security Act (ERISA) and National Labor Relations Act (NLRA).
  • The Economic Realities Test: The economic realities test requires a thorough analysis of the relationship between the parties, and evaluates the level of financial dependency that the worker has on an employer. Generally, under the economic realities test, the more an individual depends on an employer, the more likely it is that the individual should be categorized as an employee. The courts have favored this test when the term “employee” is used in a very broad sense—for example, in issues related to the Fair Labor Standards Act (FLSA) and the FMLA.
  • The Hybrid Test: As the name suggests, the hybrid test combines elements of the common law agency and the economic realities tests. Though some lower courts have used this test to deal with issues related to Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA) and the ADA, the Supreme Court has criticized this approach and is leaning more toward using the common law test for similar issues.
  • The IRS Test: The IRS has also developed its own test regarding whether an employment relationship exists between a worker and an employer, for purposes of determining tax liability of employers and individuals. The IRS test is sometimes referred to as the control test, and it expands and classifies factors from the common law test into three categories—a sphere of behavioral control, a sphere of financial control and factors that determine the type of relationship that exists between parties.

Regardless of which test is used and the context of the particular situation, employers should remember that employment relationships are dynamic. Changes that occur over time in the relationship between the company and a worker may impact how workers should be classified. For this reason, employers should evaluate whether their independent contractors are adequately classified on a regular basis.

 DOL’s Independent Contractor Rule

The DOL’s Independent Contractor Rule

The 2021 Final Rule

The DOL’s independent contractor classification final rule on Jan. 7, 2021. As published, the final rule was scheduled to become effective March 8, 2021.

This rule reaffirmed the use of the economic realities test for FLSA compliance. In issuing the rule, the DOL intended to provide a clear articulation of the economic realities test and its component factors, which it expected to lead to increased precision and predictability in the economic reality test’s application.

The factors used in the economic reality test are:

  • The nature and degree of control over the work;
  • The worker’s opportunity for profit or loss based on initiative and/or investment;
  • The amount of skill required for the work;
  • The degree of permanence of the working relationship between the worker and the potential employer; and
  • Whether the work is part of an integrated unit of production.

While the traditional approach of this test gives similar importance to all five factors, the DOL rule favored the use of the first two factors—also called the “core factors”—as determinative or controlling in the outcome. The rule also considered the remaining three factors as additional guidance. However, the final rule also stated that actual practice, rather than contractual or theoretical agreements, is more relevant during the worker classification process.

Commentators on this rule have suggested that giving greater weight to the core factors would likely result in more workers being classified as independent contractors rather than employees. Of particular importance is the impact some expect this rule will have on the gig economy and their access to employee benefits and protections.

The Regulatory Freeze

Shortly after his inauguration, President Joe Biden issued a regulatory freeze on this and other regulations adopted during the last few weeks of the Trump administration.

This freeze imposed a delay for the enforcement or effective date of agency rules and guidance to allow government officials sufficient time to determine whether these rules and guidance align with the policies of the Biden administration. This type of regulatory freeze is not uncommon when there is a change of political party affiliation at the highest levels of government.

The Delay and Proposal to Rescind

As a result of the regulatory freeze, on March 4, 2021, the DOL delayed the final rule’s effective date from March 8 to May 7, 2021.

A week later, on March 11, 2021, the DOL announced a proposal to rescind the DOL’s independent contractor rule. With the proposal, the DOL stated its opinion that implementing the rule would significantly weaken worker protections under the FLSA. Specifically, the DOL found that using this modified version of the economic reality test would narrow or minimize the importance of factors historically relevant in a comprehensive approach to evaluating whether an employment relationship exists.

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