Employee’s Right to PFML may be Limited by Misclassification
Washington’s Paid Family Medical Act provides eligible employees with paid time off for specific family and medical reasons. Unlike many other employment-related laws intended to protect Washington workers, this important right has not been expanded by the legislature or the courts to apply to the multitude of independent contractors participate in Washington’s “gig economy.” This bright line demarcation between employees and independent contractors is absolute, notwithstanding the actual facts and circumstances surrounding the worker’s employment and possible misclassification by the employer.
This rigid application of the PFLA, which requires 180 hours worked as an employee, and under no circumstances are hours worked as an independent counted towards that total. For most purposes, L&I benefits and third-party tort liability, the determination of whether an individual is an independent contractor or an employee hinge on several factors, some of which include:
What party pays the expenses associated with delivery of the services under the parties’ agreement?
What party is responsible for compliance with laws governing the collection, remittance and reporting of employment taxes?
Whether the work must only be performed by an employee or usually is done under the direction of a supervisor or is done by a specialist without supervision.
The skill required in a particular occupation.
The absence of a legal requirement that the individual must be supervised by a licensed professional.
What party provides the equipment necessary to perform the work?
What party controls service or work hours?
The method of payment, whether by time or by the job
Washington Court s and the administrative entities have developed these criteria in order to give effect to the nature of the relationship regardless of the designation made by the employer. Unfortunately, for Washington workers as currently interpreted and applied the PFMLA in Washington State is offered to employees only; however, a worker who is designated and independent contractor may opt to participate in the program by paying the full premium directly to the Employment Security Department.