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The Department of Labor Says Most Workers Are Employees, Not Independent Contractors

By Gary S. Starr & Henry J. Zaccardi on July 23, 2015
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EmployeeWorkingAtDeskImageThe U.S. Department of Labor (DOL) has issued an Administrator’s Interpretation letter on the topic of misclassification of employees as independent contractors. Their conclusion is that “most workers are employees under the FLSA’s broad definitions.” The DOL sets out several factors that it will examine when determining whether a worker is an employee or an independent contractor. Although the DOL has often placed a great deal of importance on the degree of control and direction that an employer has over the means and methods by which work is done, the new guidance states that the control factor “should not be given undue weight.” Rather, the focus is on whether, as a matter of economic reality, the worker is dependent on the employer or not.

To determine whether or not a worker is economically dependent on an employer the following questions will be examined:

  1. Is the work performed an integral part of the employer’s business?
  2. Does the worker’s managerial skill affect the worker’s opportunity for profit or loss, including making decisions about hiring helpers, advertising, recruiting clients, etc.?
  3. How does the workers’ relative investment compare to the employer’s investment; that is, is the investment significant in nature and magnitude relative to an employer’s investment in its overall business?
  4. Does the work performed require special business skills, judgment and initiative?
  5. Is the relationship between the worker and the employer permanent or indefinite; that is, is the worker engaged on a single project for an employer, continuously, or repeatedly?
  6. What is the nature and degree of the employer’s control?

The DOL’s ultimate goal is to determine whether “it is economically realistic to view the relationship as one of employment or not.”

This guidance points toward a much more active compliance enforcement. It also suggests that any particular investigation or audit by the DOL regarding any possible misclassification likely will result in finding that the worker at issue is an employee and not an independent contractor. Any employer using independent contractors needs to reexamine and reassess the way these workers are classified.

Questions or Assistance:
If you have questions regarding either of these changes, please contact (860) 251-5038, Gary Starr at gstarr@goodwin.com or (860) 251-5501 or Henry Zaccardi at (860) 251-5737 or hzaccardi@goodwin.com.

 

Photo of Gary S. Starr Gary S. Starr

Gary Starr provides practical advice to a wide range of clients in the private and public sector, bringing over 30 years of experience to counseling clients in traditional labor relations matters as well as human relations problems. His experience helps clients avoid the…

Gary Starr provides practical advice to a wide range of clients in the private and public sector, bringing over 30 years of experience to counseling clients in traditional labor relations matters as well as human relations problems. His experience helps clients avoid the “big mistakes” as well as the day-to-day hassles. Gary also defends employers in state and federal courts, regularly appearing before judges, juries, and administrative agencies. He provides strategic and creative approaches to difficult employee issues, seeking practical solutions and aggressively litigating where and when necessary.

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Photo of Henry J. Zaccardi Henry J. Zaccardi

Henry Zaccardi represents public and private employers and non-profit organizations in all aspects of labor relations and employment law. This includes personnel policies and practices, Freedom of Information Act issues, wage and hour disputes, drug and alcohol testing, family and medical leave, equal…

Henry Zaccardi represents public and private employers and non-profit organizations in all aspects of labor relations and employment law. This includes personnel policies and practices, Freedom of Information Act issues, wage and hour disputes, drug and alcohol testing, family and medical leave, equal employment opportunity and affirmative action, occupational health and safety and related matters and regulatory compliance.

Read more about Henry J. ZaccardiEmail
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  • Posted in:
    Employment & Labor
  • Blog:
    School Law
  • Organization:
    Shipman & Goodwin LLP
  • Article: View Original Source

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