On January 9, 2024, the US Department of Labor (DOL) issued a final rule that provides revised guidance on whether a worker is properly classified as an employee or independent contractor under the Fair Labor Standards Act (FLSA). Under the FLSA, employees are entitled to minimum wage and overtime pay, while independent contractors are not.… Continue Reading
Independent Contractors
NLRB’S INDEPENDENT CONTRACTOR TEST SHIFTS BACK TO PRE-TRUMP STANDARD
Last week, the National Labor Relations Board (“Board”) issued a decision changing the legal standard it will use to determine whether workers are “employees” covered by the National Labor Relations Act (“NLRA”), or independent contractors who are not.
Prior to 2019, the Board’s test for determining whether a worker was a statutory employee or independent contractor weighed a variety of factors, including those outlined in the Restatement (Second) of Agency:
(a) the extent of control which, by the agreement, the employer may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
d) the skill required in the particular occupation;
e) whether the employer or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of employer and employee; and
(j) whether the principal is or is not in business.… Continue Reading
U.S. Department of Labor Issues Proposed Rule on Independent Contractor Status
On October, 11, 2022, the U.S. Department of Labor (DOL) released a proposed rule to update the test for determining whether a worker is an employee under the Fair Labor Standards Act (FLSA) or an independent contractor. The proposal would significantly broaden the classification of workers as employees under the FLSA. … Continue Reading
Biden Administration Rescinds Employer-Friendly Independent Contractor Test
On May 6, 2021, the Department of Labor (“DOL”) issued a final rule, effective immediately, withdrawing a pro-business independent contractor rule that would have made it easier for businesses to classify workers as independent contractors, rather than as employees who are entitled to minimum wage and overtime pay under the Fair Labor Standards Act. … Continue Reading
Latest Changes to PPP Program Include Bigger Loans for Schedule C Filers
As previously reported here, President Biden directed the Small Business Administration (SBA) to impose an exclusive two-week window where only the smallest businesses – those with fewer than 20 employees and sole proprietors – can apply for Paycheck Protection Program (PPP) loans. He also instructed the SBA to change the loan calculations so certain small businesses could get bigger loan amounts, and ease certain eligibility restrictions.… Continue Reading
Employer-Friendly Independent Contractor Test is on the Chopping Block
On March 2, 2021, the United States Department of Labor (“DOL”) announced that it is officially delaying the effective date of the rule titled “Independent Contractor Status under the Fair Labor Standards Act.” The effective date for the rule has now been delayed 60 days from March 8, 2021, to May 7, 2021.… Continue Reading
Lawmakers Reintroduce the PRO Act to Promote Union Organizing
On February 4, 2021, the Senate Committee on Health, Education, Labor and Pensions (HELP) reintroduced federal legislation designed to significantly expand the rights of workers to unionize and enhance protections to employees whose efforts to do so are impeded by employers, or who are retaliated against for engaging in protected activity.… Continue Reading
DOL’s Approach to Independent Contractors under the FLSA in Flux Following Change in Administration
When someone should be treated as an independent contractor has huge implications for companies under a variety of state and federal laws that have their own standards. Unfortunately for employers, the DOL’s view of how the so-called economic reality test under tCathe FLSA should be interpreted is in flux, making compliance very challenging.… Continue Reading
Podcast – What to Expect from a Biden-Harris Administration in the Area of Labor and Employment Law
Ballard Spahr Labor attorneys Meredith Dante, Steve Suflas, and Chris Kelly discuss what a Biden-Harris administration means for employers in the area of labor and employment law. The team discusses what they expect to see from a new administration regarding: potential changes to the National Labor Relations Act; the priorities of a new National Labor Relations Board; wage and hour impacts, and worker classification, at the federal level; and evolving equal employment opportunity, and equal pay, issues.… Continue Reading