Law and the Workplace

Tag Archives: independent contractor

DOL’s New Independent Contractor Rule: A Return to 2020

By Allan Bloom on Posted in Biden Administration Coverage, FLSA, Independent Contractor, Misclassification, Wage and Hour
It’s been a bumpy road for the federal rules on independent contractor status under the Fair Labor Standards Act. In the courts, the test has always focused on the “economic reality” of the relationship between a worker and the entity that benefits from the services provided to determine whether the worker is an employee or … Continue Reading

Washington, D.C. to Expand Antidiscrimination Protections to Include Independent Contractors and Homeless Individuals

By Guy Brenner, Laura Fant and Theresa Madonna on Posted in Discrimination, Harassment and Retaliation
Seal of the District of ColumbiaEffective October 1, 2022, an amendment to the District of Columbia’s Human Rights Act (“the Act”) will expand the universe of workers protected under the Act, as well as codify workplace harassment as an unlawful discriminatory practice. First, the amendment expands the Act’s definition of a protected “employee” to now also include individuals “working or … Continue Reading

UPDATED: New York State Legislature Approves Statutory Protections for Independent Contractors

By Allan Bloom, Laura Fant and Matthew Rosenthal on Posted in Independent Contractor
Contractor AgreementUPDATE: Governor Hochul vetoed the bill on December 23, 2022. In 2016, New York City enacted the Freelance Isn’t Free Act, a local law establishing protections for certain freelance workers providing services for entities located in the City. Earlier this month, the New York State Legislature approved a bill providing similar protections to freelance workers … Continue Reading

Massachusetts High Court Clarifies Test to Determine Joint Employer Status under State Wage and Overtime Statutes

By Mark W. Batten and Rebecca Fishbein on Posted in Wage and Hour
On December 13, 2021, the highest state court in Massachusetts ruled that the proper test for determining joint employer status under the state’s wage and overtime statutes is the “totality of the circumstances” test formerly used under the Federal Fair Labor Standards Act (“FLSA”), and not the more restrictive test of Mass. Gen. L. c. … Continue Reading

New York Legislates Joint Wage Liability for Construction Industry Contractors

By Allan Bloom and Megan Childs on Posted in Wage and Hour
On September 6, 2021, New York Governor Kathy Hochul signed into law New York Senate Bill S2766, which makes contractors in the construction industry jointly and severally liable for wages owed to employees of its subcontractors.  The groundbreaking new law—which adds new section 198-e to the Labor Law (“§ 198-e”)—continues the expansion of worker rights … Continue Reading

DOL Rescinds Trump-Era Joint Employer Rule

By Heylee Bernstein and Allan Bloom on Posted in Biden Administration Coverage, FLSA, Independent Contractor, Wage and Hour
The U.S. Department of Labor announced on July 29 that it will rescind the March 2020 rule on Joint Employer Status under the Fair Labor Standards Act (the “2020 Rule”).  The DOL’s action removes the regulations established by the 2020 Rule and will become effective on September 28, 2021. 2020 Joint Employer Rule The 2020 … Continue Reading

Trump-Era Independent Contractor Rule Never to See Light of Day

By Allan Bloom on Posted in Biden Administration Coverage, FLSA, Wage and Hour
Remember the Trump administration’s new rule for classifying workers as independent contractors?  The one issued on January 6, 2021, only weeks before President Biden took office?  The one that would have revised the U.S. Department of Labor’s test for determining worker status under the Fair Labor Standards Act to focus on two “core factors” (control … Continue Reading

Business Groups Challenge Biden Administration’s Delay of Trump-era Independent Contractor Rule

By Allan Bloom and Eric Novak on Posted in Biden Administration Coverage, FLSA, Independent Contractor, Wage and Hour
In a complaint filed on March 26, 2021, business groups challenged a U.S. Department of Labor March 4, 2021 final rule to delay the effective date of the Trump-era regulation on independent contractor classification.  As we previously reported, that Trump-era rule, which was finalized two weeks before President Biden took office, was initially scheduled to … Continue Reading

DOL Begins Withdrawal of Trump-Era Opinion Letters

By Allan Bloom on Posted in Biden Administration Coverage, FLSA, Independent Contractor, Wage and Hour
As expected, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced the withdrawal of three opinion letters issued in the waning days of the Trump administration.  The opinion letters being withdrawn are: FLSA2021-4, which addressed whether a restaurant may institute a tip pool under the Fair Labor Standards Act that includes both servers, … Continue Reading

White House “Regulatory Freeze” Memo Dooms DOL Independent Contractor Rule

By Allan Bloom on Posted in Biden Administration Coverage, FLSA, Wage and Hour
As expected, the White House issued a memorandum to the heads of all executive departments and agencies within the first few hours after President Biden’s inauguration on January 20, requesting that they halt all non-emergency rulemaking and regulatory activity pending review by the new administration. The memo asks the executive agencies, which include the U.S. … Continue Reading

[Podcast]: DOL’s Proposed Rule on Independent Contractors

By Allan Bloom and Harris Mufson on Posted in Independent Contractor, The Proskauer Brief Podcast, Wage and Hour
In this episode of The Proskauer Brief, partners Harris Mufson and Allan Bloom discuss the U.S. Department of Labor’s proposed new rule on independent contractor classification.  In recent years, the misclassification of workers as independent contractors has been the subject of a number of private lawsuits and investigations by government agencies.  This is true for traditional industries and … Continue Reading

Hearing Scheduled On Proposed Amendments to Massachusetts Paid Family and Medical Leave Law

By Mark W. Batten and Samantha Regenbogen Manelin on Posted in Independent Contractor, Leaves of Absences, Workplace Policies and Procedures
On June 11, 2020, the Department of Family and Medical Leave (“DFML”) will hold a virtual public hearing on its recent proposed amendments to the final regulations pertaining to the Massachusetts Paid Family and Medical Leave Law (“PFML”) issued in June 2019.  (Instructions for registering for the virtual hearing are available at this link).  A … Continue Reading

New York City Extends Human Rights Law Protections and Training Requirements to Freelancers and Independent Contractors

By Arielle E. Kobetz, Evandro Gigante and Laura Fant on Posted in Accessibility & Accommodation, Discrimination, Harassment and Retaliation
NYC Commission on Human RightsEffective January 11, 2020, the New York City Human Rights Law (“NYCHRL”) has been amended to expand protections under the law to freelancers and independent contractors.  Significantly, this includes the requirement that certain contractors now complete annual sexual harassment prevention training in the same manner as covered employees.  Contractors also are now eligible for reasonable … Continue Reading

District of Massachusetts Grants Class Certification but denies Summary Judgment in Independent Contractor Misclassification Case

By Gillian Egan and Stacey Cerrone on Posted in Misclassification
On September 13, 2019, the U.S. District Court for the District of Massachusetts granted certification of a class of independent contractor drivers who delivered packages through Dynamex Operations East for Google Express.  Ouadani v. Dynamex Operations East LLC, No. 16-12036, 2019 WL 4384061 (D. Mass. Sept. 13, 2019).  Ouadani, a delivery driver, sued Dynamex on … Continue Reading

DOL Validates Independent Contractor Relationships in the On-Demand Marketplace

By Allan Bloom on Posted in FLSA, Wage and Hour
In an opinion letter issued April 29, 2019, the U.S. Department of Labor’s Wage and Hour Division concluded that a “virtual marketplace company” (“VMC”) that connects service providers with consumers is not the employer of the service providers.  The opinion should be a welcome one not only for VMCs and businesses in the “gig economy,” … Continue Reading

Moonlighting Police Officers Are Employees, Not Independent Contractors, Says Sixth Circuit

By Allan Bloom on Posted in Wage and Hour
In yet another legal development calling into question a traditional independent contractor relationship in the U.S., the Court of Appeals for the Sixth Circuit determined that off-duty police officers were employees of a private security company for purposes of the Fair Labor Standards Act.  In Acosta v. Off Duty Police Services, Inc. (6th Cir. Feb. … Continue Reading

[Podcast]: Recent Developments in California Law

By Tony Oncidi and Harris Mufson on Posted in Discrimination, Harassment and Retaliation, Independent Contractor, The Proskauer Brief Podcast, Wage and Hour, Workplace Policies and Procedures
In this episode of The Proskauer Brief, partner Tony Oncidi and senior counsel Harris Mufson discuss key developments in California employment law, including a new test to determine whether workers are independent contractors or employees and what’s new on the #MeToo front. Listen to the podcast.  … Continue Reading

SCOTUS:  Employers Can Compel Individual Arbitration of Wage and Hour Claims

By Allan Bloom and Mark W. Batten on Posted in Wage and Hour
  In its eagerly-awaited opinion in Epic Systems Corp. v. Lewis, the U.S. Supreme Court held on May 21 that class action waivers in arbitration agreements between employers and employees do not violate the National Labor Relations Act.  The opinion resolves a split among federal circuits, and reiterates—once again—the strong federal policy favoring arbitration. While … Continue Reading

California Changes Rules on Independent Contractors

By Allan Bloom on Posted in Wage and Hour
As reported by my colleagues in Proskauer’s California Employment Law Update, the Supreme Court of California established new rules on April 30, 2018 for determining whether a worker is an independent contractor or an employee for purposes of California’s Industrial Welfare Commission (IWC) Wage Orders.  The Wage Orders set forth California’s requirements for minimum wage, … Continue Reading

New Rules Implementing the NYC Freelance Isn’t Free Act To Become Effective on July 24, 2017

By Allan Bloom and Laura Fant on Posted in Independent Contractor
As we previously reported, in November 2016, NYC Mayor De Blasio signed into law the Freelance Isn’t Free Act, establishing protections for freelance workers, including the right to receive a written contract for work valued at $800 or more, the right to be paid timely and in full, and the right to be free from … Continue Reading

DOL Withdraws Obama-Era Administrator’s Interpretations on Independent Contractors and Joint Employment

By Allan Bloom on Posted in Independent Contractor, Wage and Hour
Employers across the U.S. were troubled by the sub-regulatory guidance issued by the DOL in 2015 and 2016 on independent contractors and joint employment.  Today, the DOL announced the withdrawal of that guidance (Administrator’s Interpretations No. 2015-01 (July 15, 2015, on independent contractors) and No. 2016-01 (Jan. 20, 2016, on joint employment)). As you may … Continue Reading

Connecticut Supreme Court Issues Important Clarification For Independent Contractor Test

By Carolyn M. Dellatore and Guy Brenner on Posted in Independent Contractor, Wage and Hour
On March 21, 2017, the Connecticut Supreme Court issued an important ruling, finding that an individual may be still considered an independent contractor under the state’s Unemployment Insurance Act even if he/she only provides services to one business or entity.  In so doing, the Connecticut Supreme Court reversed a decision by the Unemployment Insurance Board finding … Continue Reading

Appellate Division Rules That Paid Blogger Was Not An “Employee” Entitled To Unemployment Benefits, Signaling Trend Toward More Searching Judicial Review of Agency Decisions

By Allan Bloom on Posted in Independent Contractor, Wage and Hour
One of the recurring themes in workplace law in 2016 was the continued crackdown on independent contractor misclassification.  Both federal and state agencies, as well as the plaintiffs’ bar, invested significant resources to challenge employers in the “gig economy”—as well as in more traditional businesses—that rely heavily on contractors, freelancers, and other third-party service providers. … Continue Reading
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