Employer Alert: Department of Labor Withdraws Guidance on Independent Contractors and Joint Employment
Employer Alert: Department of Labor Withdraws Guidance on Independent Contractors and Joint Employment

The U.S. Department of Labor (DOL) recently announced that the Obama-era administrative interpretations regarding joint employment and the classification of a worker as an independent contractor or employee has been withdrawn.

The guidance regarding the independent contractor classification had indicated that most workers were employees, and not independent contractors.  As for the interpretation of joint employment, which can arise when people work for 2 or more entities which share control over the individuals’ work, the withdrawn guidance had reflected that the concept of joint employment, like employment generally, should be defined “expansively” under the Fair Labor Standards Act.

However, with its announcement that its guidance on these matters was being withdrawn, the DOL also announced that it will continue to “fully and fairly” enforce all laws within its jurisdiction (including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act), and that the withdrawal doesn’t change the legal responsibilities of employers under these laws, as reflected in the DOL’s long-standing regulations and case law. Therefore, the effect of this withdrawal on the DOL’s prior interpretations that were outlined in the guidance is not clear.

The situation is further muddied by the National Labor Relations Board, which continues to view joint employment broadly.  Accordingly, employers should be careful not to attach broad significance to the DOL’s withdrawal of its administrative interpretation on that issue.

It appears that the situation may be fluid, as the new administration in Washington leans toward a narrower interpretation of “employment.”  Expect more developments to follow on both joint employment and the rules determining whether a worker is viewed as an independent contractor or as an employee.  

This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP.  It is essentially the random thoughts and opinions of someone who lives in the trenches of the war that often is employment law–he/she may well be a little shell-shocked.  So if you are thinking “woohoo, I just landed some free legal advice that will fix all my problems!”, think again.  This is commentary, people, a sketchy overview of some current legal issue with a dose of humor, but commentary nonetheless; as if Dennis Miller were a lawyer…and still mildly amusing.  No legal advice here; you would have to pay real US currency for that (unless you are my mom, and even then there are limits).  But feel free to contact us with your questions and comments—who knows, we might even answer you.  And if you want to spread this stuff around, feel free to do so, but please keep it in its present form (‘cause you can’t mess with this kind of poetry).  Big news: Copyright 2017.  All rights reserved; yep, all of them.   If you have any questions about this article, contact the writer directly, assuming he or she was brave enough to attach their name to it. 

If you have any questions regarding this blog or your life in general, contact Kelly O. Scott, Esq., commander in chief of this blog and Head Honcho (official legal title) of ECJ’s Employment Law Department.  

Tags: DOL


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