The U.S. Department of Labor ("DOL") recently published a proposed rule seeking to revise the test for determining whether a worker is an employee or an independent contractor under the Fair Labor Standards Act of 1938 ("FLSA"), the federal law governing minimum wage and overtime. Importantly, the protections afforded under the FLSA apply to employees, but do not apply to independent contractors.
Under the DOL's proposed rule, the "ultimate inquiry" would be whether, "as a matter of economic reality," the worker is "economically dependent" on the employer for work. In making this inquiry, the DOL's new test would look beyond the employer's characterization of the worker as an independent contractor, and apply a non-exclusive list of six factors to determine whether the worker is economically dependent on the employer for work or runs, instead, an independent business:
1. Opportunity for Profit or Loss Depending on Managerial Skill
This factor considers whether the worker exercises managerial skill that affects the worker's economic success or failure in performing the work. Considerations under this factor include the ability to meaningfully negotiate the pay for the work provided, the freedom to accept or decline jobs or to determine when the jobs are performed, whether the worker actively markets their business, and whether the worker makes business decisions like hiring, purchasing materials and equipment, or renting space. The DOL explicitly notes that simply deciding...
CHARLOTTE — A man is suing Mecklenburg County Sheriff Garry McFadden and his office, claiming incorrect charges were posted on the county’s public mugshot website, damaging his reputation. Joseph ...