Page 45 - BusinessWest November 28, 2022

WBy Justin Goldberg, Esq.
ithin the broad realm of employment law, this past year was marked by increased protections
to employees through changes to independent- contractor classifications, raising of minimum and service wages, increasing benefits for family and
medical leave, safeguarding hairstyles of protected classes, and other changes.
Looking ahead to 2023, it certainly appears to be headed down a similar path, with employee safeguards continuing to solidify. Employee security and compensation guarantees to be a highly litigated issue in the coming year.
Here is a look back — and ahead:
U.S. Department of Labor Publishes Independent Contractor Proposed Rule
On Oct. 11, the Biden administration, via the U.S. Department of Labor (DOL), proposed to modify Wage and Hour Division regulations so as to revise its analysis for determining employee or independent-contractor classification under the Fair Labor Standards Act.
This was done with the aim to be more consistent with judicial prec- edent and the act’s text and purpose. This will mark the administration’s second attempt at undoing the Trump-era standard, which it claims denies basic worker protections such as minimum wage and overtime pay.
Secretary of Labor Marty Walsh was quoted as saying, “while indepen- dent contractors have an important role in our economy, we have seen in many cases that employers misclassify their employees as independent contractors, particularly among our nation’s most vulnerable workers,” and that “misclassification deprives workers of their federal labor protec- tions, including their right to be paid their full, legally earned wages.”
Industries such as gig companies, construction, trucking, home care, janitorial services, delivery, personal services, hospitality, and restaurants that use independent contractors as staff should pay close attention to this anticipated development. Their operating costs will undoubtedly increase if they are required to reclassify their independent contractors as employees, due to the tax liabilities and minimum-wage, labor, safety, and other legal requirements that apply to employees.
The Trump-era rule outlined a multi-factor test (five total) to deter- mine if the worker is an independent contractor or an employee; however, it gave far greater weight to two core factors: the nature and degree of the worker’s control over the work, and the worker’s opportunity for profit or
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Changes to Employment
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A 2022 Year-end Wrap Up and a Look Ahead to 2023
BusinessWest LAW NOVEMBER 28, 2022 45