Coalition Comments to U.S. DOL Regarding the Proposed Rule “Employee or Independent Contractor Classification Under the Fair Labor Standards Act"
The undersigned associations, businesses and stakeholders submit these comments to the Department of Labor (“DOL”) in response to its Notice of Proposed Rulemaking and Request for Comments Regarding Employee or Independent Contractor Classification Under the Fair Labor Standards Act (“FLSA”) (the “Proposed Rule”).1 The current DOL rule regarding independent contractor classification, which went into effect on March 8, 2021 (the “2021 IC Rule”)2 provides badly needed clarity, uniformity, and simplicity to the independent contractor analysis and accounts for the realities of the modern workplace. In doing so, it allows businesses and their workers to structure mutually beneficial relationships most suitable to those realities. The Proposed Rule, which would rescind the 2021 IC Rule, would do just the opposite. Indeed, by design, the Proposed Rule reverts to the original subjective “totality of the circumstances” analysis with an array of factors, none carrying more weight than the others, with the effect being an increase in litigation and inconsistent results in the courts.