On September 22, 2020, the U.S. Department of Labor (DOL) announced a proposed rule offering clarity to determine whether a worker is an employee under the Fair Labor Standards Act (FLSA) or an independent contractor.  In the proposed rule, the DOL would:

• Adopt an “economic reality” test to determine a worker’s status as an FLSA employee or an independent contractor.  The test considers whether a worker is in business for themselves (independent contractor) or is economically dependent on a putative employer for work (employee);

• Identify and explain two “core factors,” specifically: the nature and degree of the worker’s control over the work; and the worker’s opportunity for profit or loss based on initiative and/or investment.  These factors help determine if a worker is economically dependent on someone else’s business or is in business for themselves;

• Identify three other factors that may serve as additional guideposts in the analysis, including: the amount of skill required for the work; the degree of permanence of the working relationship between the worker and the potential employer; and whether the work is part of an integrated unit of production; and

• Advise that the actual practice is more relevant than what may be contractually or theoretically possible in determining whether a worker is an employee or an independent contractor.

This Notice of Proposed Rulemaking (NPRM) is available for review and public comment for 30 days once it is published in the Federal Register.  THLA is coordinating with our American Hotel & Lodging Association (AHLA) colleagues at the federal level to provide industry feedback within the time period for public comment.