Earlier today, the U.S. Department of Labor issued an
Administrator's Interpretation detailing the DOL's
position on the factors used and emphasized in determining employee
versus independent contractor status, which are relevant for
coverage not only under the Fair Labor Standards Act (FLSA) but
also the Family and Medical Leave Act (FMLA). The
Interpretation focuses on the FLSA's broad definition of
employ, as "suffer or permit" to work, and its intention
to "ensure as broad of a scope of statutory coverage as
possible." The Interpretation reviews factor-by-factor
the "economic realities" test used by the courts to
determine whether, "as a matter of economic reality, the
individual is dependent on the entity." Contractors will
primarily be those "workers with economic independence who are
operating a business of their own. On the other hand, workers
who are economically dependent on the employer, regardless of skill
level, are employees covered by the FLSA."
