It’s Time to Assess the Classification of Your Independent Contractors

2024年1月15日 ——美国.S. 劳工部(DOL)最近发布了一项最终规定, 3月11日生效, 2024, that reshapes its guidance on distinguishing between employees and independent contractors under the Fair Labor Standards Act (FLSA). 此更新将取代 2021独立承包商 rule and introduces an analysis that is more aligned with longstanding judicial precedent.

While one goal of the final rule is to continue to help ensure workers receive the appropriate minimum wage, 加班工资, 以及他们有权享有的其他保护, the primary goal of the rule is intended to help employers reduce the risk of misclassifying independent contractors and avoid fines and penalties for doing so.

最终的规则与之前的规则有什么不同?

The final rule replaces guidance from the 2021独立承包商 Rule by taking an approach that is more in line with the federal courts in determining employee classification and differs in the following ways:

• 回到全面经济现实测试, where no single factor or group of factors is assigned any predetermined weight.
• Considers six factors including the investments made by the worker and the potential employer.
• 提供控制因素的附加分析, 包括详细讨论如何调度, 监督, 定价, and the ability to work for others should be considered when analyzing the nature and degree of control over a worker.
• Returns to the DOL’s longstanding consideration of whether the work is integral to the employer’s business (rather than whether it is exclusively part of an “integrated unit of production”).
• 为某些因素提供额外的上下文, including a discussion of exclusivity in the context of the permanency factor and initiative in the context of the skill factor.
• Omits a provision from the 2021独立承包商 Rule which minimized the relevance of an employer’s reserved but unexercised rights to control a worker.

What are the factors that determine the classification of an independent contractor?

分析工人是独立承包人还是雇员, the final rule considers six factors of the economic reality test listed below (expanded details and specific examples can be found on the 劳工处网站). 然而, other factors in addition to those listed below may be relevant in determining whether or not a worker is economically dependent on the employer.

除了, 最终规则没有采用“ABC”测试, which permits an independent contractor relationship only if all three factors in a three-factor test are satisfied. The DOL will instead rely on the long-standing multifactor “economic reality” test used by courts to determine whether a worker is an employee or independent contractor. This test relies on the totality of the circumstances where no one factor is determinative.

1. 盈利或亏损的机会取决于管理技能 - Does the worker have opportunities for profit or loss based on managerial skill that affect the worker's economic success or failure? Managerial skill can include initiative or business expertise or judgment.
2. 工人和潜在雇主的投资 - Are any investments by a worker capital or entrepreneurial in nature?
3. 工作关系的持久程度- 工作关系是无限期的吗, 连续, 或者不为其他雇主工作? 这将有利于该工人成为雇员. 工作关系是无限期的吗, 非排他的, 基于项目的, or sporadic based on the worker being in business for themself and marketing their services or labor to multiple businesses? That would weigh in favor of the worker being an independent contractor.
4. 控制的性质和程度 潜在雇主有控制权吗, including reserved control over the performance of the work and the economic aspects of the working relationship? Reserved control means the employer has the right to control even if they do not actually exercise the control. An example of reserved control is if an employer reserves the right to discipline a worker for declining assignments.
5. Extent to Which the Work Performed is an Integral Part of the Potential Employer's Business - Is the work performed an integral part of the potential employer's business?
6. 〇技能和主动性 Does the worker use specialized skills to perform the work and do those skills contribute to business-like initiative?

新规则如何影响其他法律下的分析?

The final rule only revises the DOL’s interpretation under the FLSA. 它对其他联邦法律没有影响, 状态, 或者地方企业，他们使用不同的员工分类标准. 例如, the final rule has no effect on those 状态 wage-and-hour laws which use an “ABC” test to determine classification—which in most cases is considered much more stringent text because the burden of proof is placed on the employer, 并且工人的默认分类被设置为雇员. 使用更严格测试的州包括 AK, AR, CA, CT, DE, GA, HI, IL, IN, KS, LA, MA, MD, ME, NE, NH, NJ, NM, NV, OH, OR, RI, TN, UT, VT, WA, 和西弗吉尼亚州.

在这些州, a worker is treated as an independent contractor only if the worker satisfies all of the following factors:

1. The worker has complete control regarding work performance both by contract.
2. The work is performed outside the usual course of the hiring entity's business.
3. the worker has an independent business that customarily conducts the type of 承包的工作. 

问题?

If you have any questions about the Department of Labor’s final rule regarding worker classification, 你可以 联系Redpath和Company的顾问， 或者你可以 请访问劳工部网站 了解更多信息.