The landscape of worker classification in the United States has seen significant shifts over the years, with legal interpretations and regulations evolving to adapt to changing economic realities. One of the pivotal areas in this arena is the classification of workers as either independent contractors or employees under the Fair Labor Standards Act (FLSA). Recently, the U.S. Department of Labor (DOL) introduced a new rule, effective March 11, 2024, which revisits this classification framework, reverting to a more employee-friendly analysis.

Prior to 2021, the DOL hadn’t formally defined “independent contractor” under the FLSA, relying instead on sub regulatory guidance and court interpretations. This lack of a clear definition led to ambiguity and inconsistency in classification practices across different jurisdictions.

In January 2021, the Trump Administration introduced a formal rule known as the “2021 Rule,” which leaned towards a more employer-friendly approach, emphasizing two core factors: the principal’s right to control and the worker’s opportunity for profit or loss. However, this rule was short-lived, as the Biden Administration later rescinded it, prompting legal challenges and reinstatements.

Classification for Independent Contractors

Effective March 11, 2024, the DOL is changing how it determines if a worker is an independent contractor or an employee.

Instead of a complex five-factor test, they’re reverting to a simpler six-factor approach. This will provide more clarity and consistency, making it easier for you to understand how your workers should be classified.

The Key Factors:

  • Worker’s potential for profit or loss: This factor considers whether a worker has the opportunity to make a profit or could incur a loss based on their decisions.
  • Investments by both parties: Look at the investments made by both the worker and the employer to assess their relationship.
  • Permanence of the relationship: Consider the duration and stability of the working arrangement.
  • Degree of employer control: Assess how much control the employer exercises over the worker’s tasks and schedule.
  • Work’s importance to the business: Determine if the work performed is essential to your business operations.
  • Worker’s skill or initiative: Evaluate the level of skill or initiative required to perform the job.

State Law Reminder:

While the new DOL rule provides guidance at the federal level, it’s crucial to consider how state laws may impact worker classification. In Illinois, for instance, worker classification is governed by the Illinois Employee Classification Act (IECA), which aims to prevent misclassification and ensure workers receive proper protections and benefits. Similarly, Wisconsin has its own set of rules and regulations governing worker classification, including factors such as control, integration, and opportunity for profit or loss.

What You Can Do:

  • Review your current classification practices: Take some time to assess how you currently classify your workers and ensure they align with the new DOL rule.
  • Consider seeking advice from legal experts: If you’re unsure about how the new rule affects your business, consulting legal experts can provide clarity and guidance.
  • Implement systems for classification and conduct regular audits: Establish clear procedures for classifying workers and regularly review them to ensure compliance.

The U.S. DOL’s issuance of the new rule marks a significant development in the realm of worker classification, signaling a return to a more nuanced and balanced approach. By understanding the factors outlined in the rule and staying abreast of state-specific requirements, businesses can navigate classification challenges effectively while safeguarding against potential legal liabilities. Moving forward, proactive compliance measures and legal counsel engagement will be instrumental in ensuring adherence to regulatory standards and promoting fair labor practices.

Adapting to the new DOL rule is crucial for maintaining compliance and a fair workplace. If you need help navigating these changes or have any questions, our team is here for you.

Disclaimer: This article is intended to serve as a general summary of the issues outlined therein. While this article may include general guidance, it is not intended as, nor is a substitute for, qualified legal advice. Your review or receipt of this article by Lexern Law Offices, Ltd. (the “LLG”) or any of its attorneys does not create an attorney-client relationship between you and the LLG. The opinions expressed in this article are those of the authors of the article and does not reflect the opinion of the LLG.

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Mr. Feldman believes that communication is the key to any successful relationship with his clients. Encouraging open communication and being easily available to answer clients’ questions has allowed him to build long-term partnerships and trust with his clients. Importantly, Mr. Feldman spends significant…

Mr. Feldman believes that communication is the key to any successful relationship with his clients. Encouraging open communication and being easily available to answer clients’ questions has allowed him to build long-term partnerships and trust with his clients. Importantly, Mr. Feldman spends significant time and effort educating his clients on estate planning options and various business opportunities and associated risks, encouraging them to take a proactive approach to their future and the preservation of their legacies.

Mr. Feldman has been providing professional services to sophisticated clients at some of the largest accounting and law firms and through Lexern Law Group, which he founded in 2010. Mr. Feldman and his wife, Irina, have been married for over seventeen years and have four children. In his free time, Mr. Feldman enjoys traveling, practicing martial arts, and riding his motorcycle.