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Critical Factors in the FLSA’s Employee vs. Independent Contractor Determination

April 23, 2024

The Department of Labor (DOL) issued a new final rule under the Fair Labor Standards Act (FLSA) to clarify the distinction between employees and independent contractors, enhancing compliance and worker protections. This rule replaces the 2021 Independent Contractor Rule, effective March 11, 2024.

The final rule outlines how the FLSA applies to workers, setting standards for minimum wage, overtime pay, recordkeeping, and child labor protections. It defines employees as economically dependent on employers for work, while independent contractors operate their own businesses.

Whether a worker is an employee or independent contractor depends on an “economic reality test” based on specific factors, not merely job titles or contracts. The Final Rule provides six critical factors for analysis:

  1. Opportunity for Profit or Loss Depending on Managerial Skill: This measure focuses on whether the worker can negotiate pay, market their services, or make business decisions affecting profit or loss.
  2. Investments by the Worker and Potential Employer: This section examines whether the worker’s investments (e.g., tools and equipment) are entrepreneurial and enhance business independence.
  3. Degree of Permanence of the Work Relationship: Considers if the work is ongoing and exclusive, indicating employee status, or project-based and non-exclusive, suggesting independent contractor status.
  4. Nature and Degree of Control: Assesses the employer’s level of control over work performance and business aspects, such as setting schedules and supervising work.
  5. Extent to Which Work is Integral to the Employer’s Business: Considers if the work is central to the employer’s core business functions.
  6. Skill and Initiative: Whether the worker uses specialized skills and business-like initiative.

Each factor is weighed based on the specific circumstances of the employment relationship. The rule clarifies that workers cannot waive their FLSA rights by signing independent contractor agreements. Additionally, the FLSA’s definition of “employ” (to “suffer or permit to work”) is broader than the IRS’ standard law control test for tax purposes, potentially resulting in different classifications for workers.

Employers who incorrectly classify employees as independent contractors could be subject to liability for unpaid wages, damages, and penalties under the FLSA. This highlights the critical need for accurate worker classification to ensure compliance with FLSA standards.