By Mark Lichtenfeld. Originally published at State of Hockey.


It’s often too much.

You know, working for a place that requires you to pay two separate registration fees, not to mention having to expend nearly 10 hours on continuing education, undergoing background checks and being forced to complete molestation and injury observance training before you’re allowed to earn your first dime.

Wow, what kind of employer are you referring to, Mr. OS?

The kind that’s suddenly going to have to pay up in an ever-growing number of states, including California.

Call itself what it likes – force its workers to sign independent contractor agreements – demand that everyone adhere to the strictest of workplace policies like Safe Sport and ridiculous criminal background checks just to cover the governing body’s insurance company insane demands.

The party’s over.

I’m talking about the California Supreme Court’s decision in the Dynamax case. It’s a decision affecting Uber drivers, night club workers and just about anyone else forced to classify themselves as independent contractors.

Let’s look at the court’s test to determine employment status:

Employers may only classify a worker as an independent contractor if the hiring entity satisfies all three conditions of the test: (A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of the work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation or business of the same nature as that involved in the work performed.

Like the court says, you can’t be an independent contractor unless all conditions are satisfied, so for simplicity, forget about condition (C). Let’s look at condition (A). Now tell me, how many referees are free from the control and direction of the governing body in the performance of work? I mean, you can’t even get work until you go through the lengthy registration process to begin with. A process that requires more time than licensing rules for a criminal attorney.

Condition (B)? Here’s what a seasoned labor attorney says:

“Employers will have to show that the work performed is outside of the usual course of the business. So it would be difficult for a software development company to show that a programmer was properly classified as an independent contractor, but it may be able to show that a plumber is a contractor.”

Translation: An ice hockey governing body could never classify an ice hockey referee as an independent contractor unless officiating a hockey game is outside the usual course of its business.

You know what this means? Next time a zebra gets injured in a sanctioned game, don’t think about the secondary coverage from the governing body. Rather, think workers compensation – payable by the “employer.” And for those guys doing this full-time who suddenly find themselves blackballed by a league that represents a scheduling association’s largest account, start thinking unemployment compensation.

You guys in California, understand your rights. I mean, an Uber driver is now an employee and those guys don’t have nearly the employer demands and oversight that us Zebras do.

So as we are filling out those registration forms this month, remember, no matter how they want to classify us, the courts have the last word.


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Officially Speaking is originally published at State of Hockey,
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Reprinted with permission.