Department of Labor withdraws 2015 and 2016 informal guidance concerning joint employment and independent contractors.

Whether a worker is classified as an “employee” versus an “independent contractor” has significant ramifications. Indeed, according to the Department of Labor, “[t]he misclassification of employees as independent contractors presents one of the most serious problems facing affected workers, employers and the entire economy.”[1] There are many protections for employees that simply are not available to independent contractors. For example, when an employer misclassifies a worker as an independent contractor rather than an employee, the worker may be denied critical benefits and protections including compensation of at least the minimum wage for all hours worked and/or compensation of at least one and one-half the worker’s regular rate for hours worked in excess of 40 hours per week. Other benefits denied to misclassified workers include FMLA benefits, unemployment benefits, workplace safety benefits, and many others.

Additionally, there are many burdens and savings that employers experience whether a worker is classified as an “employee” versus an “independent contractor.” Not only does misclassification harm workers, but it harms employers that play by the rules because those employers that act unlawfully in this regard enjoy a competitive advantage over the law abiding employers.

Another question is whether an individual is an “employee” is the question of who is the “employer.” Sometimes a potential employer evades lawful obligations by creating sham contractor relationships in order to save labor costs. In such situations, as with others, there arises the question of whether one company is the “employer” or if multiple companies are “employers” under the law; often referred to as “joint employers.”

In an effort to ensure the remedial purposes of the Fair Labor Standards Act are met, the Department of Labor, from time to time, issues regulations, interpretive bulletins or opinion letters intended to clarify or frame questions including whether a worker should be classified as an “employee” versus an “independent contractor” or whether one or more companies are “joint employers” under the law. Such efforts are necessary because many workers have no choice but to agree to a mandated classification of “independent contractor.” Guidance by the Department of Labor does not limit the ability of a sophisticated self-employed entrepreneur from choosing his or her own classification. It hurts those who have but two choices: (1) accept the misclassification; or (2) find other work. These two choices are often no choice at all, especially if the worker lives in an economically depressed region where jobs are hard to come by.

Unfortunately, last week the Department of Labor announced that it is withdrawing its 2015 and 2016 informal guidance concerning joint employment and independent contractors.[2] Because employers typically have more power than the employees, the now withdrawn guidance will further increase the power imbalance against workers.

If you feel that you have been misclassified, call us at 800-274-5297 to schedule a free consultation with on of our attorneys.

[1] https://www.dol.gov/whd/workers/misclassification/#resources

[2] https://www.dol.gov/newsroom/releases/opa/opa20170607

(Advertising Material:  This Notice is for informational purposes and should not be construed as legal advice).

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