Update on the Employee or Independent Contractor Classification Under the Fair Labor Standards Act

March 14, 2024

On March 11, 2024, the labor classification guidelines under the Fair Labor Standards Act (FLSA) underwent a significant transformation from the U.S. Department of Labor (DOL). This development redefined the criteria for distinguishing between employees and independent contractors, pivoting from previous regulations that emphasized control and the potential for profit or loss. These new guidelines introduce a six-factor test, designed to decide the economic dependency of workers on their employers or their status as independent business contractors.


Understanding the Six-Factor Test


The six factors outlined in the new rule include:


  1. Opportunity for Profit or Loss Depending on Managerial Skill: This factor assesses whether workers have control over their earnings and job selection, including the ability to negotiate pay, accept or decline work, and the autonomy to make decisions related to hiring or purchasing materials.
  2. Investments by the Worker and the Potential Employer: Evaluates the nature of the worker’s investments, distinguishing between those indicative of an independent business venture and mere job-specific tools.
  3. Degree of Permanence of the Work Relationship: Analyzes the work relationship’s duration, with temporary or project-based engagements suggesting independence, contrasted with indefinite, continuous, or exclusive arrangements pointing to employee status.
  4. Nature and Degree of Control: Reviews who holds control over the work and the economic aspects of the relationship, focusing on the dynamics of performance and financial decision-making.
  5. Extent to Which the Work Performed is an Integral Part of the Business: Considers the significance of the work to the employer’s core operations, with essential contributions suggesting employee status.
  6. Skill and Initiative: Focuses on the requirement for specialized skills or training, where reliance solely on employer-provided training indicates an employee classification.


Implications for Employers


For employers and employees, it’s important to note the importance of adhering strictly to FLSA guidelines, as worker classification is not a matter of judgement but must be objectively determined based on the criteria set forth. Misclassification exposes legal challenges, potential fines, and obligations for compensating affected workers retrospectively for wages and benefits.


In light of the new, complex classification criteria, it is recommended that employers take the initiative in reviewing their workforce structures. Such proactive measures will help in adhering to the revised regulations and in reducing the possibility of non-compliance. While the new guidelines provide insight into the Department of Labor’s interpretation of labor classification, it does not carry binding authority.


Please reach out to your LMC professional for any specific questions you may have.


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