Per the notice below, the United States Department of Labor (USDOL) has issued a proposed rule on redefining the criteria for classifying someone as an employee or an independent contractor. While this has remained a hot, shifting topic federally, New York law has been relatively stable, consistent, and tough on this subject in favoring employee status.
Proposed Rule: Employee or Independent Contractor Classification
Today, USDOL announced the publication of a notice of proposed rulemaking (NPRM), Employee or Independent Contractor Classification Under the Fair Labor Standards Act in the Federal Register. Publication of the NPRM in the Federal Register starts the comment period that remains open for 45 days and closes on November 28, 2022. All comments submitted (including duplicate comments) become a matter of public record and will be posted without change to www.regulations.gov, including any personal information provided.
This NPRM, Employee or Independent Contractor Classification Under the Fair Labor Standards Act, would:
- Align the Department’s approach with courts’ interpretation of the FLSA and application of the economic reality test;
- Restore the longstanding multifactor, totality-of-the-circumstances analysis to determine whether a worker is an employee or an independent contractor under the FLSA;
- Ensure that all factors are analyzed without assigning any predetermined weight to any particular factor or set of facts;
- Return to the longstanding interpretation of the factors, including the investment factor, control factor, profit or loss factor, and the integral factor, which considers whether the work is integral to the employer’s business; and
- Rescind the 2021 Independent Contractor Rule.
The Department invites comments from the public on the proposed rule. All comments must be received by 11:59 p.m. ET on November 28, 2022, to be considered in this rulemaking. Comments received after the comment period closes will not be considered. Comments and data may be submitted online or by mail. Address written submissions to: Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, N.W., Washington, DC 20210. For more information on the Notice of Proposed Rulemaking, Employee or Independent Contractor Classification Under the Fair Labor Standards Act, contact the Wage and Hour Division or call toll-free 1-866-4US-WAGE.