Court Retroactively Reinstates Independent Contractor Final Rule
Mar 23, 2022
In early 2021, the new Biden administration delayed and then formally withdrew the Trump administration’s final “Independent Contractor Rule” that would have altered the way businesses determine whether it’s appropriate to classify someone as an independent contractor.
On March 14, 2022, Judge Marcia Crone of the US District Court for the Eastern District of Texas reinstated the Independent Contractor Rule. Judge Crone found the Department of Labor (DOL) had violated the Administrative Procedure Act (APA) requirements twice:
Here is some of the language from the Court decision:
The Independent Contractor Rule was an attempt to condense and align the numerous economic realities test inconsistencies which have arisen from various courts over decades of case law. In contrast to the seven factors used in various ways across the nation, the new rule prioritizes two “core factors” and offers 3 additional guideposts for consideration when necessary (with a caveat that this is not an exhaustive list of factors for consideration).
Below are the new economic realities test factors (with 1 and 2 as “core factors” intended to “typically (but not necessarily) carry greater weight”):
This is how the Independent Contractor Rule explains the importance of the first two core factors:
Given these two core factors’ greater probative value, if they both point towards the same classification, whether employee or independent contractor, there is a substantial likelihood that is the individual’s accurate classification. This is because other factors are less probative and, in some cases, may not be probative at all, and thus are highly unlikely, either individually or collectively, to outweigh the combined probative value of the two core factors.
Now that the Independent Contractor Rule is effective retroactively to March 8, 2021, this will be meaningful for employers in determining their group size so they can ensure compliance with various laws. The rule has broad reach, addressing protections under the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and Occupational Safety and Health Act (OSHA), as well as potentially impacting applicable large employer (ALE) status under the Affordable Care Act (ACA) and identifying for whom an offer of health insurance coverage must be provided.
We will see how the Biden administration responds, including any appeal they might file. Of course, employers should also be cognizant of any state laws which might apply additional considerations. Misclassification of workers is a primary enforcement area for all levels of government (including the National Labor Relations Board, the IRS, and roughly half of the states) to safeguard worker protections.
Written by: KC Rippstein
IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information.
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