November 30, 2022

Volume XII, Number 334

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November 30, 2022

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DOL Issues Proposed Rule Addressing Independent Contractor Status

On October 13, 2022, the Department of Labor (DOL) issued a notice of proposed rulemaking (Notice) that seeks to clarify the analysis for determining whether a worker is an employee or independent contractor. According to the DOL, the proposed rule is intended to be more consistent with legal precedent interpreting the Fair Labor Standards Act (FLSA).

The Notice proposes to replace the January 7, 2021, Independent Contractor Status Under the FLSA rule with a rule that seeks to reduce the risk that employees are misclassified as independent contractors, while attempting to provide added certainty for businesses that engage with individuals who are in business for themselves. The DOL states the new rule would preserve essential worker rights and provide consistency for regulated entities. The full text of the Notice as published in the Federal Register can be found here.

According to the DOL, the proposed rule would do the following:

  • Rescind the 2021 Independent Contractor Rule. 

  • Revert to the longstanding interpretation of the economic reality factors, thereby aligning the department's approach with courts' FLSA interpretation and the economic reality test.

  • Ensure that all economic realities test factors are analyzed without assigning a predetermined weight to a particular factor or set of factors.

  • Restore the multifactor, totality-of-the-circumstances analysis to determine whether a worker is an employee or an independent contractor under the FLSA. 

  • Assist with the proper classification of employees and independent contractors under the FLSA.

The comment period for this Notice closes at 11:59 p.m. ET on December 13, 2022. Anyone who submits a comment (including duplicate comments) should understand and expect that the comment, including any personal information provided, will become a matter of public record, and will be posted without change to www.regulations.gov

© 2022 Miller, Canfield, Paddock and Stone PLC National Law Review, Volume XII, Number 326
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About this Author

Deja M. Davis Associate Attorney Detroit Michigan Employment Labor Miller, Canfield, Paddock and Stone, P.L.C.
Associate

Deja Davis is an associate in Miller Canfield's Employment and Labor Group. She earned her J.D. with honors from the University of Detroit Mercy School of Law, where she was the Moot Court Executive Director of External Competitions, president of the Black Law Students Association, and Student Chair Member of the Diversity Committee. She earned her B.S. at Pennsylvania State University, where she was a Dean's List honoree and All-Academic Big Ten honoree as a member of the track and field team.

Deja previously served as a law clerk for Lakeshore...

313-496-7950
Ashley N. Higginson Employment Attorney Miller Canfield Law Firm
Associate

Ashley Higginson's practice focuses on employment and labor issues, with particular experience in education matters.

Ashley has extensive experience working with public school districts, charter and private schools, and schools for students with disabilities. Her work includes matters involving boards of education, the Open Public Records Act, FERPA, teacher tenure, special education and 504 accommodations, teacher tenure charges, harassment and discrimination claims, public bidding and union negotiation.

Ashley has...

517-483-4912
Scott R. Eldridge Labor & Employment Attorney Miller, Canfield, Paddock and Stone Lancing, MI
Principal

Scott Eldridge focuses his practice on management-side labor and employment law, governmental litigation, and commercial litigation.

He represents colleges and universities, municipalities, non-profits, public bodies, government contractors, and commercial enterprises in state court, federal court, and administrative tribunals. Scott also routinely represents his clients in the Michigan Court of Appeals and the Michigan Supreme Court.

Labor and Employment Law

• Employment litigation defense (discrimination, harassment, whistleblower claims)

• Title VII of the...

517-483-4918
Brian Schwartz Employment Attorney Miller Canfield Law Firm
Principal

Brian Schwartz represents management in various aspects of labor and employment counseling and litigation.

His practice focuses on defending single-plaintiff and class-action lawsuits involving retiree health benefit disputes, employment discrimination (race, gender, and disability discrimination), harassment, and retaliation claims, as well as wage and hour claims, FMLA claims, ERISA disputes, Title IX claims, Freedom of Information Act and due process lawsuits. He also counsels employers on drafting enforceable non-competition, non-solicitation and confidentiality...

313.496.7551
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