The Department of Labor has issued a Notice of Proposed Rulemaking with the intention of providing clarity in the standards used to determine the status of an individual as either an employee or Independent Contractor.
- Adopt an “economic reality” test to determine a worker’s status as an FLSA employee or an Independent Contractor. The test considers whether a worker is in business for themselves (Independent Contractor) or is economically dependent on a putative employer for work (employee);
- Identify and explain two “core factors,” specifically: the nature and degree of the worker’s control over the work; and the worker’s opportunity for profit or loss based on initiative and/or investment. These factors help determine if a worker is economically dependent on someone else’s business or is in business for themselves;
- Identify three other factors that may serve as additional guideposts in the analysis including: the amount of skill required for the work; the degree of permanence of the working relationship between the worker and the potential employer; and whether the work is part of an integrated unit of production; and
- Advise that the actual practice is more relevant than what may be contractually or theoretically possible in determining whether a worker is an employee or an Independent Contractor.
The public will have 30 days to comment on the proposed regulation; the comment period will begin on the date of publication in the Federal Register. Comments can be submitted through regulations.gov
Once the final rules are published, we will provide an overview and impact announcement.
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