Employee or Independent Contractor?

To Be or Not to Be (An Independent Contractor): DOL Seeks to Clarify Independent Contractor Test in Landmark Proposed Rule

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From Lexology, Abad Lopez and Christina C. Brunty provide a comparison of the Department of Labor’s (DOL) proposed rule with the existing guidance. Abad and Christina write:

In its proposed rule, the DOL has created a new framework for the well-established “economic reality” independent contractor test. This test is used to determine whether the individual is truly in business for themselves (an independent contractor) or is economically dependent on their employer for work (an employee).

Existing Guidance: Seven Equal Factors

In the DOL’s existing guidance, the DOL puts forth seven “economic reality” factors, all of which are to be given equal weight:

  1. The extent to which the services rendered are an integral part of the principal’s business.
  2. The permanency of the relationship.
  3. The amount of the alleged contractor’s investment in facilities and equipment.
  4. The nature and degree of control by the principal.
  5. The alleged contractor’s opportunities for profit and loss.
  6. The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.
  7. The degree of independent business organization and operation.

Proposed Rule: Two Core Factors and Three Guidepost Factors

The DOL has proposed that these existing seven equal factors be replaced with two “core factors” and three “guidepost” factors. The two “core” factors are the primary factors that will be given the most, if not exclusive, weight in the analysis. The three “guidepost” factors are only to be used as tie-breakers if the analysis of the core factors does not provide a clear answer.

Core Factors:

  1. The nature and degree of the worker’s control over the work. If the individual exercises substantial control over key aspects of the job, this factor favors the individual being classified as an independent contractor.
  2. The individual’s investment and opportunity for profit or loss. Individuals who (a) exercise personal initiative, including through their managerial skill or business acumen, and/or (b) manage investments in, or capital expenditure on work-related materials, research, or personnel. The DOL clarifies that the “side-by-side comparison method” is abandoned in the proposed rule because individual workers will inevitably have fewer resources than businesses.

Guidepost Factors:

  1. The amount of specialized training or skill required for the work that the potential employer does not provide.
  2. The degree of permanence of the working relationship, focusing on the continuity and duration of the relationship and weighing towards independent contractor status if the relationship is definite in duration or sporadic.
  3. Whether the work is “part of an integrated unit of production.” The DOL has proposed to assess whether the proposed contractor’s work is “integrated” rather than “integral” to the potential employer’s business. If an individual is merely a part of a potential employer’s integrated production process, then that points to the individual being an employee, not an independent contractor. Conversely, if an individual’s work is segregable from the potential employer’s production process, that favors the individual being an independent contractor.

Read the full story at To Be or Not to Be (An Independent Contractor): DOL Seeks to Clarify Independent Contractor Test in Landmark Proposed Rule – Lexology

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