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If your organization uses—or plans on using—independent contractors, now is the time to make sure you are classifying those workers correctly.
That's because the U.S. Department of Labor last week released new interpretive guidelines that aim to clarify how businesses should distinguish between employees and independent contractors. End result: The DOL has narrowed the definition and, thus, made using independent contractors more legally risky. The DOL's conclusion: "In sum, most workers are employees under the FLSA's broad definitions.”
The new guidelines are the latest move in the IRS' and DOL's massive "Misclassification Initiative” that targets employers with more audits and closer scrutiny if they use independent contractors. States have also begun cracking down on employers that use contractors to save on taxes, overtime and legal liability.
Understand this issue once and for all—and get in compliance. Join us Wednesday, Aug. 26, at 1:00 pm Eastern for our timely webinar, Independent Contractor Workshop: How to Comply and Avoid the IRS/DOL Crackdown. Discover how these guidelines change the classification game … and how to create foolproof independent contractor relationships. Learn more …
The DOL's 15-page interpretive guidance isn't a change in federal policy, which would require several more regulatory steps. But courts often use such DOL interpretations when deciding lawsuits. The guidance stresses that the Fair Labor Standards Act (FLSA) definition of "employment” is very broad, and that employers are probably violating the law if they're treating workers who are integral to the business as independent contractors.
Employers are supposed to consider a list of six "economic realities” when classifying workers, including how much control the employer has over the worker's tasks and schedule. It focuses on whether the worker is economically dependent on the employer or in business for him or herself. (The DOL says, for example, that if a nurse must accept every client a registry refers to her, she's an employee. If the nurse can turn down clients, she may be an independent contractor.)
But in this new guidance, the DOL warns that too many employers look solely at this control factor when making classifications. Instead, the guidance says, all six factors "should be considered in totality … the 'control' factor should not play an oversized role.”
Independent contractor status can save you big on taxes and benefits. But you must get those classifications right—now more than ever! Learn how to establish legally safe independent contractor relationships on Wednesday, Aug. 26, at our timely webinar, Independent Contractor Workshop.
The DOL's new interpretive guidance clearly moves further away from using control over a worker's day as the crucial element in determining employee or independent contractor status. Instead, the interpretation focuses on the FLSA's term of art, "to suffer or permit to work,” and the economic realities of the relationship. This is a significant shift.
A worker who is economically dependent on an employer is suffered or permitted to work by the employer. Thus, applying the economic realities test in view of the expansive definition of "employ” under the FLSA, most workers are employees under the FLSA, according to the new interpretation. That's especially true with workers in low-wage occupations, who are economically dependent on the company using their services.
Bottom line: Employers that want to use independent contractors properly should apply the economic realities test. Consider each factor, focusing on whether the worker is really in business for him or herself (and thus is an independent contractor) or is economically dependent on the employer (and thus is an employee).
Seek legal guidance if you have any doubt. You don't want to get this wrong.
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