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  1. #1

    Default 1099 Contract Workers Being Required to Wear Masks- Legal

    My question involves labor and employment law for the state of: California

    I'm currently a 1099 employee of a logistics firm.
    My job is delivering to customers from a central location or location(s) owned/controlled by my employer.
    The goods delivered are owned by the employer and we use software provided by the employer.
    They have recently begun requiring 1099 employees to wear masks not only while at their facility
    but during the course of the work, which takes place in our personally owned vehicles & at their customers' locations.
    They are willing to provide the masks at no cost to us, and they in fact do so.

    They do not pay full benefits because of 1099 classification, something which I'm not sure has changed due to the passage of AB5.
    The company indicates that if we do not wear a mask while on their property or at any time during our route, this may affect our ability to continue working for them (contractual standing/future eligibility).
    They have provided have written notice of this, and they do not provide any exemptions to the requirement in their notice.
    In the cities/counties where my work is performed, no laws have been passed making masks legally required, thus it is at the requirement of my employer.

    I thus have a few questions:
    Does the requirement to wear a mask during our routes mean that we should now be classified as employees because it is effectively a "uniform" requirement (being worn on the body and thus part of our appearance)? I thought that 1099 contractors were exempt from uniform and appearance requirements. Until this new requirement, we have been exempt.

    Do they have a right to fire us (as either 1099 contractors, as we are currently, or as employees) if we refuse to do so? They claim that they do.
    It would be easy enough for them to fire us and officially state it as some other reason, since we are independent contractors, such as "lost a package" or "offended customer" or something like that. Would it be likely that a suit against them would be successful on these grounds, even if they lied about the reason for firing us?

    I have also heard that the ADA protects employees with disabilities from having to wear masks (for disability reasons), and that we do not have to disclose a disability? Is this protection only for employees? Do we need prior documentation of this, since it was not an initial requirement when we signed up for the job and has only recently been added?

    Tl/DR:
    Are masks legally considered a uniform for purposes of 1099/employee status, when they are not required by law?
    Does this mean one is legally an employee (& subject to protections against being fired for example or having to pay SE tax? Does this extend for the whole duration of our employment if we have already paid tax for several years?)
    Can 1099 employees be fired for not wearing a mask?
    Does the ADA protect us from being required to wear a mask? Do we need prior documentation for this?
    Can they just change the contract of employment anytime they want or do we have protections against that?

  2. #2
    Join Date
    Oct 2014
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    Default Re: 1099 Contract Workers Being Required to Wear Masks- Legal

    Quote Quoting adaquestion20
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    My question involves labor and employment law for the state of: California

    Does the requirement to wear a mask during our routes mean that we should now be classified as employees because it is effectively a "uniform" requirement (being worn on the body and thus part of our appearance)? I thought that 1099 contractors were exempt from uniform and appearance requirements. Until this new requirement, we have been exempt.
    It's not the same as a uniform since the purpose is not appearance. From what you said, it appears that the requirement is at least in part for protection of their customers. Nevertheless it is one more additional thing the employer controls over how you do your work and would help push the classification towards being an employee. But in order to make a determination of whether you are an employee you have to take into account all the details of the relationship with the company. California as a more rigorous test for independent contractors but I'm not familiar with the details of how that is being applied as I don't practice in that state. You and your fellow contractors might want to consult an employment law attorney in CA for an opinion on whether you are properly classified, or perhaps the CA Labor and Workforce Development Agency would make that determination for you.

    Quote Quoting adaquestion20
    View Post
    Do they have a right to fire us (as either 1099 contractors, as we are currently, or as employees) if we refuse to do so? They claim that they do.
    The company can terminate the reationship without consequence unless your contract with the company is for a specific period of time (e.g. 1 year or whatever) and does not allow the company to terminate you early because of this.

    Quote Quoting adaquestion20
    View Post
    It would be easy enough for them to fire us and officially state it as some other reason, since we are independent contractors, such as "lost a package" or "offended customer" or something like that. Would it be likely that a suit against them would be successful on these grounds, even if they lied about the reason for firing us?
    If you have a contract like I described above and the employer fires you in violation of that contract you may sue for the breach of that contract. If the company claims the reason for termination was something else that the contract does allow them to fire you for then whether you would win depends on which of you does a better job of convincing the jury as to why you were terminated. No way anyone here can tell you with much certainty how that is likely to come out since we don't know (and at the moment neither do you) what evidence the jury would hear on it.

    If you don't have that kind of contract then you are out of luck here.


    Quote Quoting adaquestion20
    View Post
    I have also heard that the ADA protects employees with disabilities from having to wear masks (for disability reasons), and that we do not have to disclose a disability? Is this protection only for employees?
    The ADA only protects employees, not independent contractors.

    Quote Quoting adaquestion20
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    Do we need prior documentation of this, since it was not an initial requirement when we signed up for the job and has only recently been added?
    First, understand that even if you are an employee and had a legitimate disability that would prevent you from wearing a mask that does not mean that the employer must let you do the job without the mask. If the mask is needed to prevent risk of harm to others and there is no accommodation that can be made to achieve that goal without the mask then the employer may still fire you if you cannot wear the mask. The ADA explictly allows the employers to require that disabled employees be able to meet requirements necessary for health and safety.

    Now, let me ask a question that you didn't address: why is it that you are seemingly so resistant to wearing a mask during work? That may help with figuring out what options you might have.

  3. #3
    Join Date
    Oct 2006
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    Default Re: 1099 Contract Workers Being Required to Wear Masks- Legal

    Now, let me ask a question that you didn't address: why is it that you are seemingly so resistant to wearing a mask during work? That may help with figuring out what options you might have.
    As far as I am concerned that is the most important question of all. How does wearing a mask effect you so negatively that you would even be on here asking questions? Why wouldn't you want the customers to be reassured by you wearing a mask?

  4. #4
    Join Date
    Nov 2013
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    Default Re: 1099 Contract Workers Being Required to Wear Masks- Legal

    Quote Quoting adaquestion20
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    They do not pay full benefits because of 1099 classification, something which I'm not sure has changed due to the passage of (AB)-5.
    AB-5 codified into law the ABC test as to whether or not you are an employee or an IC. The presumption is that you are an employee regardless of the fact that you may have signed a contract to work as an IC.

    Under the ABC test, a worker is considered an employee and not an independent contractor, unless the hiring entity satisfies all three of the following conditions:

    •The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;

    •The worker performs work that is outside the usual course of the hiring entity’s business; and

    •The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

    You work for a logistics company and you are told what to deliver, where to deliver it to, and when to deliver it by the company. You are not free from control so the employer cannot prove the A part of the test.

    You do not work outside of the usual course of business of the company. You do what the company is in business to do. The B part of the test fails.

    An example would be that if you were a computer programmer and the company need a program written (not something the company is in business to do) then you would be outside of the normal course of business.

    If your only work comes from this one company and you have no other viable clientele and you would be unemployed if you lost this job, then the C test fails.

    You are misclassified and so is anyone who works for this company as an IC doing the same work that you do.

    Read it for yourself.

    What you and your co-workers do about is up to you and them. You could just wear the mask and keep making a living knowing that you have a claim against the company.

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