Mark Pestronk
Q: I run a host agency, and I am always concerned about how our ICs identify themselves on social media and what they say about us. May I legally require ICs to submit all social media posts to us in advance for approval? Do I have the right to require ICs to give me their social media logins so that I can take down or edit offensive posts that violate our agreement? I must tell you that, when I have tried to do these or similar things in the past, I have received a lot of pushback. ICs claim that our requirements are illegal because these rules make them employees and violate their First Amendment rights. What is your opinion?
A: The host-IC relationship is a business-to-business relationship, and each party's rights and duties depend on what the contract says. If your agreement provides for advance approval of social media posts mentioning your agency and gives you the right to log in and take down offensive posts, then those requirements are perfectly legal.
If your agreement does not cover these situations, you can't enforce your rules unless ICs agree to an amendment incorporating them. I can certainly understand why some ICs might strenuously object on grounds of fairness, but they have no legal basis for objecting.
When ICs object to a given requirement, they sometimes claim that the requirement is "illegal" because it makes them employees and not ICs. They believe that any sort of control over their conduct is inconsistent with IC status and would compel a government agency to reclassify the relationship as one of employment.
In reality, as the U.S. Department of Labor stated in adopting its final rule on IC status, no single factor or set of factors is determinative of IC status. So an IC can never validly claim that a single requirement by itself renders the relationship one of employment.
One of the six factors the department just adopted as the test of IC status is "the nature and degree of control." Even if your social media requirements constituted control, it could easily be outweighed by Labor's five other factors, which can be found by entering "Small Entity Compliance Guide" in the search field here.
In any case, the department gives some examples of what it means by "control," such as setting the worker's schedule or the prices or rates for services. Requiring pre-approval of social media postings does not seem to be the kind of control that it has in mind.
Assuming, hypothetically, that the relationship were to be reclassified as one of employer and employee, then there are indeed legal restrictions on employers' control of employees' social media. For example, California law protects employees and employment applicants from being required to share their social media and methods of access with employers.
The free speech guarantee of the First Amendment to the Constitution applies only to government action; i.e., no government agency can restrict free speech. It does not apply to actions by private parties, so a contract between businesses can legally restrict free speech.