By December 13, 2022, when the US Department of Labor (DoL) closed public comments on its proposed nation-wide rule on determining worker status, the document had accrued more than 54,000 public comments.
Many of those comments come from translators and interpreters (T&Is) concerned that their livelihood will be threatened by new guidelines that will misclassify them as employees.
The DoL introduced the rule, Employee or Independent Contractor Classification Under the Fair Labor Standards Act (FLSA), on October 13, 2022.
Under the FLSA, covered employers are required to pay employees, but not independent contractors, Federal minimum wage and time-and-a-half for overtime.
The proposed rule offers guidance for determining employee or independent contractor status under the FLSA — not exactly a groundbreaking contribution from the Labor Department.
In fact, the new rule is intended to replace the DoL’s 2021 Independent Contractor Rule, which has been in effect since March 8, 2021.
In other words, the Labor Department is backpedaling on its own rule, proposing a “return to a totality-of-the-circumstances analysis of the economic reality test in which the factors […] are considered in view of […] the whole activity.”
This test sets the DoL’s proposed rule apart from its own stalled PRO Act and California’s controversial “gig worker bill” AB 5, both of which rely on the well-known ABC Test to distinguish employees from independent contractors. (T&Is ultimately won an exemption from AB 5 in August 2020.)
In an official comment on the proposed rule, the Association of Language Companies suggested that the DoL’s proposed six-factor test would make worker status determinations less predictable.
Moreover, the ALC wrote, the DoL could reference an “immense body of case law” to find support for its preferred interpretation of the economic realities test.
“In many ways, the [proposed] rule takes the previous state of affairs — a complex set of case law rulings from various US courts — and picks from among them to try to make it harder to classify workers as independent contractors,” ALC Advocacy Consultant Bill Rivers told Slator.
He added: “At the least, the new rule will cause more confusion, and likely more litigation, across all industries reliant on freelance professionals.”
Before the proposed rule can go into effect, all the comments must be adjudicated, any necessary changes must be made, and the final rule must be published — typically a process that takes between six and nine months, Rivers said.
Image: Marty Walsh, United States Secretary of Labor