Daniel Schwartz of Connecticut Employment Law Blog notes that there seems to be no summer vacation when it comes to employment law. Following quickly on the heels of the proposed rule on overtime, the Department of Labor just issued an “Administrator’s Interpretation No. 2015-1”: The Application of the Fair Labor Standards Act’s “Suffer or Permit” Standard in the Identification of Employees Who Are Misclassified as Independent Contractors (JulY 15, 2015). David Weil, DOL’s administrator of the Wage and Hour Division also posted at the US Department of Labor Blog: Employee or Independent Contractor?
Schwartz offers insight into this newly issued document noting that, “this type of analysis isn’t all that new or surprising. Courts have been using it for a while. And it shouldn’t cause you to drop everything you’re doing today to look at this.”
Jon Hyman of Ohio Employer’s Law Blog weighs in (Who is an employee? DOL has answers in guidance on independent-contractor status) offering his “duck test”:
The best test to determine whether a worker is an employee or an independent contractor is the “duck” test—if it looks like an employee, acts like an employee, and is treated like an employee, then it’s an employee…. I think you know an employee when you see one.
Robin Shea, Employment & Labor Insider: You’ve been warned – those independent contractors are probably employees
She offers four key points for employers to keep in mind as well as questions to ask yourself about your “independent contractors” and follows with this:
“Is the answer to any one of the above questions dispositive? Are you kidding? That would be way too easy! No, you have to consider what courts like to call “the totality of the circumstances.” In other words, all of these factors have to be considered before a determination is made. Your safest bet is to err on the side of finding that the worker is an ’employee.'”
Maria Hanaher, Employment Law Matters: DOL guidance on independent contractor classification provides another arrow in the Department’s enforcement quiver.
“The correct classification of workers as employees or independent contractors, especially in combination with the recent proposed changes to white-collar overtime regulations, is a clear indication of the focus of the DOL’s future compliance enforcement efforts regarding employee classification issues. Employers ignore this indication at their peril.”
Philip Miles, Lawficce Space: DOL Weighs in on Employee vs. Independent Contractor Classification
Miles notes that there are two common tests usesd” economic realities test and common law test, and that in its latest guidance, DOL came down in favor of the economic realities test.
“To the surprise of no one, DOL picked the broader definition. Classification remains more art than science.”
Andrew McIlvaine, HRE Daily: The Feds’ War on Employee Misclassification
Written by the DOL’s Wage and Hour Division Administrator, David Weil, the 15-page memo states that the misclassification of employees as independent contractors “is among the most damaging to workers and our economy.” It emphasizes the WHD’s six-factor economic realities test that’s used to determine a worker’s status along with what a just-released briefing from law firm Seyfarth Shaw describes as “an extremely expansive reading of the FLSA’s ‘suffer or permit to work’ definition of ‘employ.’”