Picture this: a California resident working in California
files suit against the employer for allegedly misclassifying
the worker as an independent contractor instead of an
employee. The employer is headquartered in Georgia and
the worker has signed an employment contract including a
choice-of-law clause selecting Georgia law. Does Georgia
law apply? If the language of the clause is broad enough
to include a misclassification claim, perhaps. What if the
application of Georgia law violates California public
policy? The answer to this is almost assuredly a
resounding "no." But should Georgia law apply?
This Note argues that it should, under the right
circumstances. The distinction between an employee and
an independent contractor varies from state to state.
Companies, both large and small, hiring independent
contracts in multiple states struggle to comply with this
diverse body of law, leading to costly litigation and
penalties due to noncompliance. However,
misclassification undeniably poses a significant problem
for workers and state and federal treasuries as well. So
how can this gap between worker and employer be
bridged? This Note argues that if there is a substantial
connection between the chosen state and the employer and
the language of the contract clearly demonstrates that the
worker is foregoing the right to litigate a misclassification
claim under the law of the worker's state of residence, the
clause should be enforceable. Enforcing choice-of-law
clauses under these circumstances will prevent a race to
the bottom on the part of the employers, respect party
autonomy, and reduce uncertainty in litigation for the
Sullivan, Koleen S.
"Enforceability of Choice-of-Law Clauses in the Context of Misclassification Litigation: Bridging the Gap Between Worker and Employer,"
Georgia Law Review: Vol. 47:
4, Article 8.
Available at: https://digitalcommons.law.uga.edu/glr/vol47/iss4/8