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New Year, New Protections

By John S. Gannon, Esq.


Last month, the U.S. Department of Labor (DOL) issued a final rule that provides businesses with guidance to be used when evaluating whether a worker should be classified as an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The DOL is also expected to issue a final rule that will extend overtime protections to an estimated 3.6 million salaried workers who are currently exempt under the law. Read on for more details about both of these developments.


Employee or Independent Contractor?

There are lots of reasons why a business would want to classify an individual as an independent contractor instead of an employee. For starters, employees are entitled to minimum wage and overtime pay protections, while independent contractors are not.

Moreover, Massachusetts employees are afforded rights and protections under the state Paid Family and Medical Leave program and the Earned Sick Time Law. Employees can also take advantage of workers’ compensation benefits when they are injured on the job, and typically can collect unemployment if they lose their job. Independent contractors do not get these benefits.

As a result, agencies like the DOL and the Massachusetts Attorney General’s Office consider misclassifying employees as independent contractors to be a serious problem. To combat this, DOL recently released guidance that explains how to analyze whether a worker is an employee or independent contractor under the FLSA.

The new rule is generally considered more employee-friendly than previous guidance, and it looks at the ‘economic realities’ of the working relationship. If the economic realities show that the worker is economically dependent on the employer for work, then the worker is an employee. If the economic realities show that the worker is in business for himself or herself, then the worker is an independent contractor.

The following factors are used to guide the assessment of whether a worker is an employee under the FLSA or an independent contractor in business for himself or herself:

• Opportunity for profit or loss depending on managerial skill. If the worker has no opportunity for profit or loss in connection with the project they are working on for the business, they are probably not in business for themselves, and therefore employee status is suggested.

• Investments by the worker and the employer. This factor looks at whether the individual uses their own tools/equipment and the labor of others to further a true business. If these investments are being made, it suggests the worker is an independent contractor.

• Permanence of the work relationship. Independent-contractor relationships are typically set for a defined period of time, or until a project is finished. If the relationship is continuous/indefinite in duration, it suggests an employee-employer relationship.

• Nature and degree of control. Independent contractors set their own schedules free from supervision by their clients or customers. Conversely, if the worker is being supervised and has a set schedule, employee status is suggested.

• Whether the work performed is integral to the employer’s business. This factor looks at whether the work is critical, necessary, or central to the potential employer’s principal business, which indicates employee status. Where the work performed by the worker is not critical, necessary, or central to the potential employer’s principal business, this indicates independent-contractor status.

• Skill and initiative. The focus here is on whether the worker uses their skills in connection with business initiative. If the worker does, that indicates independent contractor status; if the worker does not, that indicates employee status.

Proper classification of workers is of critical importance to employers. As explained above, when an employer misclassifies an employee as an independent contractor, the worker cannot take advantage of numerous workplace protections afforded to employees. This can lead to significant administrative penalties for businesses, not to mention costly misclassification lawsuits. When the classification analysis is a close call, employers should consult with their employment counsel prior to making the determination to avoid costly mistakes.


New Overtime Protections for Millions of Employees

Last fall, the DOL announced a proposed rule that would increase the salary threshold for exemptions from minimum wage and overtime pay requirements under the executive, administrative, or professional exemptions — otherwise known as the EAP exemptions.

As a reminder, in order to qualify for an EAP exemption, employees generally must be paid a salary of at least $684 per week ($35,568 annually). The DOL’s proposed rule would raise the current minimum weekly salary threshold for exempt employees to $1,059 per week, which amounts to $55,068 annually. In short, this means that most employees with a salary of less than $1,059 per week will soon be entitled to overtime when working more than 40 hours in a workweek.

The DOL’s proposed salary threshold rule would also automatically update these earnings thresholds every three years. We expect the rule will be finalized in April, and may go into effect as soon as June. With the 2024 presidential election approaching, the Biden administration will want to finalize this rule as soon as possible to avoid a new administration rescinding the rule.


Bottom Line

We encourage clients to take a proactive, preventive approach to wage and hour laws. Consider having your compensation practices audited by experienced counsel to be sure your business is not mistakenly classifying employees as independent contractors. Also, an audit will help spot overtime exemption problems before litigation ensues.


John S. Gannon is a partner with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. Gannon specializes in employment litigation and personnel policies and practices, wage and hour compliance, and non-compete and trade-secrets litigation; (413) 737-4753; [email protected]