In a move aimed at providing clarity and consistency in determining worker classification, the U.S. Department of Labor (DOL) has announced a final rule on classifying workers as employees or independent contractors under the Fair Labor Standards Act (FLSA). The new rule, set to take effect on March 11, 2024, replaces the 2021 Independent Contractor Rule and reinstates a multifactor analysis consistent with established judicial precedent.

Addressing a Serious Issue

Employee misclassification has been a longstanding issue impacting workers’ rights, particularly regarding minimum wage and overtime pay eligibility. The misclassification deprives workers of essential rights and protections, facilitates wage theft, enables some employers to undercut law-abiding competitors, and poses a threat to the broader economy.

Acting Secretary of Labor, Julie Su, emphasized the seriousness of misclassifying employees as independent contractors, stating that it is a problem that needs addressing to protect workers from exploitation. The new rule aims to ensure that workers are classified correctly and receive the wages they have earned.

Key Elements of the Final Rule

The final rule reintroduces a multifactor analysis that courts have employed for decades to determine a worker's status as either an employee or an independent contractor. The analysis involves considering six key factors:

• Opportunity for Profit or Loss: Examining whether a worker can profit or lose based on their managerial skill and financial investment.
• Financial Stake and Nature of Resources: Assessing the financial stake and nature of any resources a worker has invested in the work.
• Degree of Permanence: Evaluating the degree of permanence in the work- relationship between the worker and the employer.
• Degree of Control: Determining the employer’s level of control over the person’s work.
• Essentiality to the Employer’s Business: Considering whether the work performed by the person is essential to the employer’s business.
• Worker’s Skill and Initiative: Factoring in the skill and initiative demonstrated by the worker in performing the tasks.  

Rescinding the 2021 Independent Contractor Rule

The final rule also rescinds the 2021 Independent Contractor Rule, which the DOL believes is inconsistent with the law and longstanding judicial precedent. This move is part of the department’s effort to align worker classification standards with established legal principles.

Stakeholder Involvement

In developing the new rule, the DOL's Wage and Hour Division (WHD) actively sought stakeholder input during forums held in the summer of 2022 and the subsequent comment period following the proposal's announcement in October 2022. This collaborative approach reflects the department’s commitment to considering diverse perspectives in crafting regulations that impact employers and workers.

Conclusion

The U.S. DOL’s final rule on worker classification represents a significant step in addressing the challenges associated with employee misclassification. By reinstating a multifactor analysis consistent with longstanding legal precedent, the rule aims to provide clarity for employers and workers alike, safeguarding workers’ rights and promoting fairness in the labor market. Employers are advised to familiarize themselves with the new rule and ensure compliance to avoid legal consequences associated with misclassification.

OnBlick remains committed to monitoring the WHD and will promptly share the latest updates as soon as they become available.