The Administrator of the Wage Hour Division of U.S. Department of Labor has issued an Administrator’s Interpretation of the FLSA’s definition of “employ.” And the conclusion is one that not only could have a significant impact on the way companies do business, but lead to numerous class and collective actions alleging that workers have been misclassified as independent contractors.
Addressing the misclassification of employees as independent contractors, the Administrator’s Interpretation notes that the FLSA’s defines the term “employ” as “to suffer or permit to work.” Based on that definition, the DOL concludes that “most workers are employees.”
The Interpretation cites to the six-factor “economic realities” test the DOL applies as indicia of employment, but emphasizes certain aspects of that test. Notably, the Administrator states that the goal of the “economic realities” test is to determine whether a worker is “economically dependent” on the alleged employer, or is really in business for himself or herself.
1. Is the Work an Integral Part of the Employer’s Business?
The Administrator’s Interpretation emphasizes that a workers’ duties are likely to be an “integral part” of an employer’s business if they relate to the employer’s core products or services.
For example, the Interpretation cited to the Seventh Circuit’s decision in Secretary of Labor v. Lauritzen, a self-described “federal pickle case” in which the issue was “whether the migrant workers who harvest the pickle crop of defendant … are employees … or are instead independent contractors....”
Summarizing the point, the Administrator’s Interpretation quoted the Seventh Circuit’s statement in that case stating that it “does not take much of a record to demonstrate that picking the pickles is a necessary and integral part of the pickle business. . . .”
2. Does the Worker’s Managerial Skill Affect the Worker’s Opportunity for Profit or Loss?
The Administrator’s Interpretation emphasizes that the opportunity for profit or loss reflects independent contractor status only when it is dependent on managerial skill.
By contrast, the Administrator opines that the fact that a worker that can increase his or her earnings by working longer hours is not evidence that the worker is an independent contractor
3. How Does the Worker’s Relative Investment Compare to the Employer’s Investment?
Previously, the DOL had stated that the relative investment of a worker “compared favorably” if the investment was substantial and could be used for the purpose of sustaining a business beyond the particular job or project the worker was performing.
While these factors are mentioned in the new guidance, the Administrator’s Interpretation appears to place greater emphasis on a comparison of the investments of the worker and the potential employer. The Administrator opines that even if a worker has made an investment, that investment has to be significant when compared to the investment of the purported employer.
4. Does the Work Performed Require Special Skill and Initiative?
The Administrator’s Interpretation asserts that it is a worker’s business skills as an independent business person, not his or her technical skills, that support independent contractor status.
The Administrator states that only skilled workers who operate as independent businesses, as opposed to being economically dependent on a potential employer, are independent contractors.
5. Is the Relationship between the Worker and the Employer Permanent or Indefinite?
The DOL’s prior Fact Sheet on independent contractor status stated that the absence of a permanent relationship may not suggest independent contractor status when arising from “industry-specific factors” or the fact that the potential employer “routinely uses staffing agencies.”
The Administrator’s Interpretation adds to this opinion by opining that the finite nature of an independent contractor relationship should be the result of the worker’s “own business initiative.”
Thus, an employer who imposes limits on the duration of its independent contractor relationships should consider whether that policy will continue to have the desired results.
6. What is the Nature and Degree of the Employer’s Control?
The Administrator’s interpretation emphasizes that an independent contractor must control “meaningful aspects” of the work demonstrating that the worker is conducting his or her own business. However, the Interpretation does not specifically explain what aspects of a job are “meaningful.”
The Administrator does make clear that flexible work arrangements are common forms of employment. Therefore, the Interpretation concludes the fact that an individual works from home or controls the hours of work is not particularly indicative of independent contractor status.
While the Administrator’s Interpretation does not have the force of law (or regulation), it will be applied by the DOL and may be given deference by courts. Accordingly, employers should evaluate the extent to which they are relying on criteria addressed by the Administrator (such as flexible work arrangements and relationships of finite duration) as justification for classifying workers as independent contractors.