Misclassification of Employees – Litigation and Transactional Issues Across the Employment Spectrum

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The misclassification of employees as independent contractors or as exempt from the overtime requirements of the law has increasingly become the focus of government agencies, from the U.S. Department of Labor and the IRS to state and local agencies.  It has also become the target of an explosion in employment litigation.  Misclassification has significant implications for employee pension and welfare plans, and it is increasingly an issue in corporate transactions.

Educational Objectives:
• The different tests applicable to classification of independent contractors
• The standards for employees to be properly classified as exempt from overtime
• The multiple risks of misclassification
• The impact of misclassification on employee benefits plans

Who would benefit most from attending this program?
Human resources professionals and counsel to employers will benefit from attending the program, as they will learn why employee misclassification has become a focus of lawsuits, government investigations and benefits problems, and an issue when buying or selling companies.



Ms.Susan Bernstein is a special counsel at Schulte Roth & Zabel, where her practice focuses on ERISA issues for single, multiple and multiemployer qualified and nonqualified benefit plans, including: designing and amending plans; ongoing plan administration and regulatory compliance; monitoring legislative and regulatory developments; complying with ERISA reporting and disclosure requirements; preparing and negotiating IRS, DOL and PBGC filings; communicating with employees; and counseling clients on issues related to the merger and termination of benefit plans.  Ms. Bernstein’s experience also includes advising clients on the design and administration of health and welfare benefit plans, including compliance issues regarding health care reform, COBRA and HIPAA; negotiating employment agreements and counseling employers on all aspects of executive compensation, including Section 409A compliance, and representing tax-exempt clients with respect to all aspects of employee benefit matters regarding 403(b) plans, 457(b) plans, 457(f) plans, employment contracts, 990 reporting issues and intermediate sanction issues.

Ms.Bernstein was appointed to the Internal Revenue Service Advisory Committee on Tax Exempt and Government Entities (ACT) by the Secretary of the U.S. Department of the Treasury, upon recommendation of the Commissioner of the IRS.  She is a member of the Stafford Publications ERISA Advisory Board, the New York City Bar Association Committee on Executive Compensation and Employee Benefits, and the New York State Bar Association’s Committee on Women in the Law.  She was recognized by the New York State Bar Association as an Empire State Counsel Honoree and received WHEDco’s Pro Bono Leadership Award.

Ms.Bernstein is admitted to practice in New York.She earned her J.D. from Benjamin N. Cardozo School of Law and her B.A. from the University of Pennsylvania.


Mr. Stephen Brecher is a special counsel at Schulte Roth & Zabel, where his practice focuses on advising public and private companies in matters involving executive compensation and employee benefits, including compliance with ERISA and other tax, corporate and securities laws and regulations. In addition, he advises clients with regard to the employee benefits aspects of mergers and acquisitions transactions. Mr. Brecher has significant experience designing equity-based compensation plans and awards and represents executives and employers in the negotiation and drafting of employment and termination agreements.

Mr. Brecher is admitted to practice in New York. He earned his J.D. from Fordham University School of Law and his B.A., summa cum laude, from Brooklyn College of the City University of New York.


Mr. Max Garfield is a special counsel at Schulte Roth & Zabel, where his practice focuses on representing employers in all areas of employment law. He litigates disputes involving employment agreements, restrictive covenants, employment discrimination and harassment, contract claims, common law tort claims, executive compensation and ERISA claims in federal and state court, in arbitrations and before administrative agencies. Mr. Garfield also advises employers on day-to-day employment issues including hiring and terminating employees, drafts and advises on separation and other employment-related agreements, and conducts and leads trainings and investigations for clients. He also represents clients in connection with government investigations. He is listed in New York Super Lawyers as a “Rising Star” for employment litigation: defense and is a member of the Bloomberg BNA Labor & Employment Technology and Innovation Board.

Mr. Garfield is admitted to practice in New York. He received his J.D. from Columbia Law School and his A.B., magna cum laude, from Brown University.


Mr. Scott Gold is a special counsel at Schulte Roth & Zabel, where he represents clients in all areas of employment law, including employment discrimination, labor relations and ERISA litigation. Scott is a member of the board of directors of the Neighborhood Housing Services of New York City Inc., the Labor and Employment Law Section of the New York State Bar Association, and the Section of Labor and Employment Law of the American Bar Association. He was recently recognized by the Lawyers Alliance for New York as a 15 Year Circle Honoree, by the New York State Bar Association as an Empire State Counsel Honoree and with WHEDco’s Pro Bono Leadership Award.

Mr.Gold is admitted to practice in New York. He received his J.D. from Georgetown University Law Center, his B.S. from Cornell University and his G.C. from the London School of Economics.