This octopus in New Zealand has been trained to take photos of visitors to the Sea Life Aquarium. That’s a pretty neat trick. I’m sure the visitors love it and will pay whatever exorbitant fee the aquarium charges to profit on the back of its cephalopod slave labor, but will the photos last? Do the visitors keep them, or do the pictures end up in the circular file at home?
Some photos are cherished and kept. Others, not so much.
So which category will the Department of Labor’s (DOL) new independent contractor test fall into — cherished and kept? Or not so much?
As reported here, in September 2020, the DOL published a new proposed rule for how to determine independent contractor versus employee status under the Fair Labor Standards Act (FLSA). The DOL has been rushing to publish the new rule before Inauguration Day 2021, in case of a change in the Oval Office.
Now facing that change, the White House on Monday approved the proposed rule, and this morning the DOL released the new rule. It takes effect on March 8, 2021 — unless it doesn’t. The Biden administration’s incoming press secretary, Jen Psaki, has already said the new administration would try to kill this one in an early executive order. We’ll see how that plays out.
Meanwhile, whether the new rule goes into effect or not, the FLSA analysis for independent contractor versus employee should not really change anyway. The new rule is essentially a repackaging of how the courts have already been applying the FLSA’s test. While Democrats have protested the new rule as an attempt to make it easier to classify someone as an independent contractor, I don’t see it that way. I see it as a clearer way to articulate the test that has been applied for years.
Once Biden takes office, there are so many things he’ll want to undo, he’ll need more hands than an octopus has legs, so this one might not quite hit the top of the list. We’ll continue to monitor the status of this proposed new rule, including whether and when it actually takes effect.
In the meantime, if you can get to New Zealand anytime soon, there’s an octopus that would like to snap your picture. Happy New Year!
Editor’s Note: For more information, tips and developments on issues related to joint employment and independent contractor misclassification issues, follow Todd Lebowitz’s blog, at whoismyemployee.com.