INDUSTRY NEWS
U.S. Department of Labor Announces Final Rule to Clarify Independent Contractor
Status Under the Fair Labor Standards Act —
On January 6, the U.S. Department of Labor announced a final rule clarifying the
standard for employee versus independent contractor status under the Fair Labor
Standards Act (FLSA). “This rule brings long-needed clarity for American workers and employers,” said U.S. Secretary of Labor Eugene Scalia. “Sharpening the test to determine who is an independent contractor under the Fair
Labor Standards Act makes it easier to identify employees covered by the Act,
while recognizing and respecting the entrepreneurial spirit of workers who
choose to pursue the freedom associated with being an independent contractor.” Streamlining and clarifying the test to identify independent contractors will
reduce worker misclassification, reduce litigation, increase efficiency, and
increase job satisfaction and flexibility. The real-life examples included in the rule provide even greater clarity for the
workforce. The final rule includes the following clarifications: reaffirms an economic reality test to determine whether an individual is in
business for him or herself (independent contractor) or is economically
dependent on a potential employer for work (FLSA employee). Identifies and explains two core factors that are most probative to the question
of whether a worker is economically dependent on someone else’s business or is in business for him or herself: the nature and degree of control over the work; the worker’s opportunity for profit or loss based on initiative or investment. Identifies three other factors that may serve as additional guideposts in the
analysis, particularly when the two core factors do not point to the same
classification. The factors are: the amount of skill required for the work; the degree of permanence of the
working relationship between the worker and the potential employer. Whether the work is part of an integrated unit of production. The actual practice of the worker and the potential employer is more relevant
than what may be contractually or theoretically possible. Provides six fact-specific examples applying the factors. The rule will take effect 60 days after publication on the Federal Register, on
March 8, 2021.
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