DOL Unveils Revamped Independent Contractor Test

The United States Department of Labor has issued a proposed rule that will significantly impact worker classification under the Fair Labor Standards Act (FLSA).  The proposal, released Tuesday, October 11, 2022, is a departure from the standard adopted during the Trump administration. The FLSA generally requires covered employers to pay nonexempt employees at least the federal minimum wage for all hours worked and at least one and one-half times an...
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Texas Federal Court Reinstates Trump Independent Contractor Rule

Bernadette Hunton
Bernadette Hunton
03/19/2022
On September 21, 2020, the Trump administration Department of Labor (DOL) announced a notice of proposed rulemaking related to worker classification. The proposed rule set forth a new test for determining a worker’s status as an independent contractor or an employee. The changes overall would have made it easier for businesses to classify workers as independent contractors under the Fair Labor Standards Act (FLSA).  My colleague blogged about...
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California Voters Declare Gig Economy Drivers Are Independent Contractors

Kollman & Saucier
Kollman & Saucier
11/04/2020
In a reversal of fortune for gig economy workers in California, voters in that state said ‘yes’ to Proposition 22,  which classifies app-based transportation and delivery drivers as independent contractors.  Proposition 22 was put on the ballot in response to a California law, AB5, which required gig companies like Uber and Lyft to treat drivers as employees and provide them protections like unemployment insurance, healthcare, breaks,  and...
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DOL Proposes New Independent Contractor Rule

Darrell VanDeusen
Darrell VanDeusen
09/22/2020
The U.S. Department of Labor (DOL) announced on September 21, 2020 a notice of proposed rulemaking (NPRM) that re-defines “employee” under the Fair Labor Standards Act (FLSA) as it relates to independent contractors.  https://www.dol.gov/agencies/whd/flsa/2020-independent-contractor-nprm.  The  NPRM is available for review and public comment for 30 days after it is published in the Federal Register. The issue of who qualifies as...
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California Judge Rules that Rideshare Drivers Should be Considered Employees

Vincent Jackson
Vincent Jackson
08/18/2020
In the ongoing battle over the classification of gig workers, a California state court judge recently ruled in favor of workers being classified as employees, as opposed to independent contractors.  The California Attorney General had filed suit against Uber and Lyft in the Superior Court of California, County of San Francisco, seeking an injunction that would force the two rideshare companies to classify its drivers as employees.  The...
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California Court Rejects Challenge to New Independent Contractor Test

Vincent Jackson
Vincent Jackson
03/24/2020
In the midst of the ongoing debate over the appropriate employment classification of workers traditionally considered to be independent contractors, California has served as a laboratory of evolving law.  Its State Supreme Court (in Dynamex Operations W. V. Superior Court, 4 Cal. 5th 903, 232 Cal. Rptr. 3d 1, 416 P.3d 1 (2018)) and State Legislature (through Assembly Bill 5) both recently have adopted a new definition of “independent...
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Uber Hit With $650M in Employment Taxes in NJ

Frank Kollman
Frank Kollman
12/02/2019
Uber claims that its drivers are independent contractors.  New Jersey, on the other hand, says that they are employees.  What’s the difference?  At least $650 million in unpaid unemployment and state disability taxes, according to New Jersey. This tax bill should remind you that there are serious penalties for misclassifying employees as independent contractors.  In addition to NJ, the federal and most state governments are becoming more...
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Surgeon Is Not Hospital Employee For Title VII Purposes, Seventh Circuit Holds

To build on my colleague Vince Jackson’s recent post about the Department of Labor’s distinction between independent contractors and employees, teasing out whether an individual is (or was) a company’s employee who is generally covered by equal employment opportunity laws, or an independent contractor who is not covered, is an often difficult but critically important issue in handling employment litigation. This week, a federal court of...
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Department of Labor Opines That Gig Workers are Independent Contractors

On April 29, 2019, the Department of Labor’s (“DOL”) Wage and Hour Division issued an opinion letter (FLSA2019-6) stating that workers in the “gig” or “sharing” economy should be considered as independent contractors rather than employees.  This opinion letter, while limited to the specific facts of the anonymous company who requested it, has potentially wide-ranging consequences for the sharing economy as a whole. The DOL’s letter...
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NLRB Restores Independent Contractor Analysis

Garrett Wozniak
Garrett Wozniak
01/29/2019
This past Friday, the National Labor Relations Board, in 3-1 decision, revitalized the importance of “entrepreneurial opportunity” in the analysis of whether a worker is an employee or independent contractor for purposes of the National Labor Relations Act (NLRA).  SuperShuttle DFW, Inc., 367 NLRB No. 75 (Jan. 25, 2019).  The distinction between employee and independent contractor status is important, because the former is protected by the NLRA...
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