Written by: Sean Williamson
On September 22, 2020, the Department of Labor (“DOL”) issued a proposed rule that attempts to clarify the distinction between employees covered by the Fair Labor Standards Act (“FLSA”) and independent contractors. The FLSA requires covered employers to pay nonexempt employees at least the federal minimum wage for every hour worked and overtime pay for every hour worked over forty (40) in a work week, and it also mandates that employers keep certain records regarding their employees. A worker who performs services for an individual or entity as an independent contractor, however, does not fall within the FLSA’s requirements applicable to employees.
The FLSA does not define “independent contractor,” but the DOL and the courts have long interpreted the distinction between an employee and independent contractor to require evaluation of the worker’s economic dependence on the putative employer. The ultimate inquiry is whether—as a matter of economic reality—the worker is dependent on a particular individual, business, or organization for work (and thus is an employee) or is in business for himself or herself (and thus is an independent contractor). While this “economic reality” test has existed for some time, the DOL’s proposed rule emphasizes that the underpinnings and application of the test have lacked focus, creating uncertainty in the regulated community.
The DOL’s proposed rule attempts a “clear articulation” of the test by sharpening the inquiry into five distinct factors. Two “core” factors—(1) the nature and degree of the worker’s control over the work and (2) the worker’s opportunity for profit or loss—would be afforded greater weight than any others in the analysis of economic dependence or lack thereof. The three remaining, but less probative, factors to be considered under the proposed rule are (3) the amount of skill required for the work, (4) the degree of permanence of the working relationship, and (5) whether the work is part of an integrated unit of production. If the first and second “core” factors both weigh in favor of finding either an employee or independent contractor relationship, the analysis is likely complete and will not be affected by the remaining three subsidiary factors, which serve as tie-breakers.
This dual factor analysis, with tie-breaking factors, substantially departs from the multi-factor, “totality of the circumstances” tests applied in various federal courts. It also shifts the focus of the analysis away from the potential employer’s control over the worker, instead focusing on the worker’s control over his or her work, such as decisions of when to work and for how long. The DOL’s proposed rule would provide businesses with much needed clarity in classifying their workers, and a more favorable standard for those businesses wishing to treat workers as independent contractors.
Businesses, however, should be cautious in relying on the DOL’s proposal should it ultimately be adopted as a final rule. The country is in the midst of a hotly contested election cycle. There is no guarantee that a new presidential administration or Congress would not eliminate the regulation. Even if the proposed rule survives the pitfalls of electoral politics, it will very likely be challenged in the courts which might decide that the DOL’s interpretation of the FLSA is not entitled to judicial deference. Finally, the DOL’s proposed rule does nothing to obviate the obligations of businesses to comply with more restrictive state laws.