DOL Issues Guidance On Worker Misclassification

The Wage and Hour Division of the Department of Labor has issued the much-anticipated Administrator's Interpretation on Misclassification.

As the guidance makes clear, employers misclassifying employees as independent contractors remains a key enforcement priority of the DOL.  This focus is readily apparent as the guidance starts with several pages reiterating that the definition of employee should be very broad.

Under the FLSA, in order to determine if a worker is an employee, an "economic realities" test rather than a common law control test governs.  The economic realities test focuses on whether the worker is economically dependent on the employer or truly in business for him or herself.