Department of Labor Issues Final Guideline on Independent Professional Meaning under the Fair Labor Standards Act

Seyfarth Run-through: Today the U.S. Department of Labor provided its last guideline, trying to specify staff member versus independent specialist status under the Fair Labor Standards Act (FLSA) (the “Last Guideline”). The Last Guideline rejects an earlier effort under the previous Administration to update and streamline how to identify who is a staff member and who is a professional by concentrating on 2 core elements. The Last Guideline rather claims to go back to an uncertain totality-of-the-circumstances method, while likewise positioning a thumb on the scale in favor of more employees being considered staff members under the FLSA.


The FLSA specifies “staff member” in an unhelpful, circular style. Area 3( e) of the FLSA specifies the term “staff member” as “any specific utilized by a company.” Area 3( d), in turn, specifies “company” to “consist of[e] anybody acting straight or indirectly in the interest of a company in relation to a staff member.”

In the lack of a concrete statutory meaning of “staff member,” and to compare staff members (who are covered by the FLSA) from independent professionals (who are not), court choices predominately coalesce around some type of an “financial truths test,” in which courts stabilize numerous elements to identify if an employee is so based on business to which they render services that they should be considered a staff member. However application of the financial truths test has actually resulted in divergent results based upon comparable truths. As summed up by Judge Easterbrook of the Court of Appeals for the Seventh Circuit, the financial truths test “is unacceptable both since it uses little assistance for future cases and since any balancing test pleads concerns about which elements of ‘financial truth’ matter and why.” Sec’ y of Labor v. Lauritzen, 835 F. 2d 1529, 1539 (7th Cir. 1988) (Easterbrook, J. concurring).

In January 2021, the DOL provided an analysis defining how to specify a staff member versus a professional under the FLSA (the “2021 Guideline”). In doing so, the DOL proposed to streamline the multi-factor test by stating 2 core elements to think about: ( 1) the nature and degree of the employee’s control of the work, and (2) the employee’s chance to make a revenue or loss. The proposition even more supplied that, if both elements point towards the exact same category– whether staff member or specialist– then the employee is most likely to be categorized as such. If, nevertheless, those elements point in opposite instructions, then 3 other elements ought to be thought about: (1) the quantity of ability needed for the work; (2) the degree of permanence of the working relationship in between the specific and the business, and (3) whether the work becomes part of an incorporated system of production. The 2021 Guideline was a welcome advancement for business neighborhood.

Following the modification in administration, nevertheless, the DOL postponed the reliable date of that guideline and after that (unsuccessfully) tried to withdraw it in Might 2021.

The DOL’s New Analysis

As we talked about here, on October 11, 2022, the DOL provided a notification of proposed rulemaking (” NPRM”) proposing to rescind the 2021 Guideline and change it with a multifactor, totality-of-the-circumstances analysis to identify whether an employee is a staff member or an independent specialist under the FLSA. And as we talked about here, here, and here, the NPRM proposed an analysis which altered the query in favor of staff member status. The Last Guideline mostly embraces the NPRM, with a couple of exceptions, as kept in mind listed below.

( 1 ) Totality-of-the-circumstances test. Just Like the NPRM, the Last Guideline embraces a totality-of-circumstances test, avoiding the more targeted and focused query under the 2021 Guideline. Under this analysis, “nobody aspect or subset of elements is always dispositive, and the weight to provide each aspect might depend upon the truths and scenarios of the specific relationship.” Missing from the Last Guideline is any indicator on how courts ought to weigh each aspect, depending the specific truths and scenarios, and even the truths within each aspect. Undoubtedly, the DOL specifically decreased to produce an analytical structure that would supply organizations and employees “a scorecard or a list.” The Last Guideline likewise appears to allow factor to consider of several truths throughout various elements, however supplies no assistance on how that needs to happen, so that those specific truths will not be managed outsized weight in the last analysis.

( 2 ) The employee’s chance for earnings or loss depending upon supervisory ability. ” This aspect thinks about whether the employee has chances for earnings or loss based upon supervisory (consisting of effort or organization acumen or judgment) that impact the employee’s financial success or failure in carrying out the work.” The Last Guideline helpfully clarifies that it is an employee’s “chances” for earnings and loss, rather of whether the employee in fact makes the most of that chance, that is the example under this prong. Under the NPRM, an employee’s unilateral option to bypass an entrepreneurial activity would have made staff member status most likely. Under the Last Guideline, nevertheless, it is the truth that the employee has the option at all– and hence the capability to exercise his organization judgment– that is a sign of independent specialist status. The Last Guideline likewise included the language “consisting of effort or organization acumen or judgment,” which was missing from the NPRM. This is a welcome addition since the NPRM focused simply on “supervisory ability,” which narrowed the kinds of proof a sign of independent specialist status.

( 3 ) Investments made by the employee and the company The Last Guideline embraces the NPRM’s solution that a financial investment borne by the employee needs to be capital or entrepreneurial in nature to show independent specialist status, which financial investments ought to be examined independently from the opportunities-for-profit-or-loss aspect (unlike in the 2021 Guideline). The Last Guideline likewise embraces the NPRM’s method that an employee’s financial investment “ought to be thought about on a relative basis with the possible company’s financial investments in its total organization.” Nevertheless, the Last Guideline clarifies that the contrast needs to be mostly qualitative, instead of quantitative– i.e., on whether the employee is making comparable types of financial investments, not on the quantity or size of the financial investments (which will often be higher for the supposed company). Even more, although the NPRM initially recommended that any expense borne by an employee to carry out a task might not be proof of capital or entrepreneurial financial investment, the Last Guideline acknowledges that financial investments in tools and devices might happen for lots of factors beyond efficiency of a specific task, consisting of the efficiency of more kinds of work, the decrease of expenses, or the extension of market reach, and hence might be proof of independent specialist status in particular scenarios.

( 4 ) Degree of permanence of the work relationship The Last Guideline states that the permanency aspect “weighs in favor of the employee being a staff member when the work relationship is indefinite in period, constant, or unique of work for other companies.” The NPRM initially supplied that, where an absence of permanence is because of “functional attributes that are distinct or intrinsic to specific organizations or markets and the employees they utilize,” that do not have of permanence would not always be proof of independent specialist status. The Last Guideline was adapted to acknowledge that if the absence of permanence was both associated to functional attributes and the employee’s workout of independent organization effort, it might be proof of independent specialist status. The Last Guideline, nevertheless, supplies no clear assistance regarding what certifies as the employee exercising his organization effort in this context. The Department’s commentary likewise recently acknowledges that the permanence aspect can not be minimized to simple factors to consider of length, and rather, can just be completely evaluated versus the background of a complete understanding of the relationship in between the employee and organization (such as periodic freelancing).

( 5 ) Nature and degree of business’s control over the employee. The Last Guideline mostly embraces the NPRM with regard to the control aspect. Realities pertinent to manage would consist of whether the company sets the employee’s schedule, monitors the efficiency of the work, sets the rate or rate for service, or clearly restricts the employee’s capability to work for others. One crucial modification from the NPRM is that the Last Guideline clarifies that “actions taken by the possible company for the sole function of abiding by a particular, relevant Federal, State, Trial, or regional law or guideline are not a sign of control.” On the other hand, “actions taken by the possible company that exceed compliance … and rather serve the possible company’s own compliance techniques, security, quality assurance, or legal or customer care requirements might be a sign of control.” The DOL appears to be stating that stringent compliance with health and wellness requirements enforced by law are not a sign of staff member status, however if a company surpasses those requirements (e.g., produces a more secure workplace than strictly needed) this “might” be a sign of staff member status. This produces a possibly hazardous disincentive: organizations that exceed minimum security requirements run the risk of having their independent professionals considered staff members. Similarly troublesome, the Guideline supplies no explanation of the significance behind its “sole function” language. For instance, an organization might think that imposition of a lawfully needed requirement has secondary worth (undoubtedly, many laws exist for some useful function beyond the simple truth of compliance). However it is uncertain under the Last Guideline’s expression whether such a secondary factor to consider, even if it would have had no effect on business’s act of abiding by the law, might affect the analysis of this aspect.

Independently, the NPRM initially supplied that any suggests of technological “guidance” would matter proof of control. The Last Guideline, nevertheless, acknowledges that is not constantly the case, and supplies that technological guidance is only proof of control if utilized to “monitor the efficiency of the work.” That is, under the Last Guideline, simply gathering information produced from the actions of an employee (e.g., that a product was provided) is not always proof of control. Nevertheless, if that information is coupled with extra supervisory action, such as directing or remedying the employee’s conduct, it might be proof of employer-like control under the Last Guideline.

( 6 ) Level to which the work carried out is an important part of the company’s organization The DOL’s framing of this aspect might be especially troublesome. The Last Guideline states that “this aspect does not depend upon whether any specific employee in specific is an important part of business, however rather whether the function they carry out is an important part” which when the work an employee carries out is “vital, needed, or main to the company’s primary organization,” then this aspect weighs in favor of company status. It pleads the concern of how to identify a company’s “primary organization” or what is “vital, needed, or main to it,” though the DOL’s commentary to its proposition supplies possible assistance. The Last Guideline stops working to provide any persuading description for its departure from the “integrated system of production” requirement utilized in the 2021 Guideline and very first articulated by the Supreme Court in Rutherford Food Corp. v. McComb, 331 U.S. 772 (1947 ), which mostly rests on the DOL’s belief that utilizing Rutherford‘s real language would be “extremely stiff.”

( 7 ) Whether the employee utilizes specialized abilities in carrying out the work. Under the Last Guideline, like under the NPRM, if an employee “utilizes specialized abilities and … those abilities add to business-like effort,” then the employee is most likely a professional. In its commentary, nevertheless, the DOL proposes to specify those abilities directly. The DOL commentary likewise proposes that, even when an employee has specialized abilities, that truth is unimportant unless the work needs those abilities.

Under the proposed guideline, nobody aspect would be dispositive or entitled to fixed weight. While on the one hand this might appear to result in higher versatility, it blurs lines, causes irregular outcomes, and supplies organizations and employees bit of the clearness that rulemaking on employee status was expected to supply.

What’s Next and What Will It Mean

With the Department of Labor’s retreat from the 2021 Guideline just a brief time after it entered into result, organizations and employees alike are confronted with yet another possible analytical test versus which they should determine their work relationships. Although the Last Guideline efforts to tilt the scale towards staff member status in the typical case, considerable concerns stay about the supreme effect of the Last Guideline, consisting of whether it will be managed any deference from courts, whether it will endure an unavoidable legal difficulty, and whether (like the 2021 Guideline) it will remain in jeopardy in any administration modification. In the meantime, organizations ought to evaluate their independent specialist relationships due to the Last Guideline.

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