In a seminar focused on recent updates to labor and employment laws, Will Oden, of Ward and Smith's labor and employment practice group, provided an overview of employee and independent contractor classification guidelines, restrictive covenants, enforcement actions, the NLRB, and more.

Employees and Independent Contractors

It is not uncommon for an employee to be misclassified as an independent contractor as opposed to an employee by their employer. The United States Department of Labor ("DOL") has made enforcement and proper classification a priority for the agency. To ensure that a worker has been properly classified for compliance purposes under the Fair Labor Standards Act ("FLSA"), businesses should consider the following factors:

• The nature and degree of the individual's control over the work
• The individual's opportunity for profit or loss
• The amount of the individual's investment in facilities and equipment
• Degree of permanence of the working relationship
• The amount of initiative, judgment, or foresight by the individual as compared to others in the open market
• The degree of independent business organization and operation
• Whether the services rendered by the worker are an integral component of the company's business

This year, the factors to consider over proper classification have shifted on a number of occasions. In fact, under the Biden Administration, the DOL has proposed a new rule to rescind and replace current regulations that were published towards the...

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