Independent Contractor? Not Likely

On July 15, 2015, Administrator David Weil of the Department of Labor ("DOL") issued a guidance memorandum (the "Guidance") that concludes most independent contractors are incorrectly classified and are employees under the FLSA. The Guidance comes from a DOL that has been actively bringing enforcement actions against employers for misclassifying workers as independent contractors who are exempt from FLSA minimum wage and overtime provisions. In reaching its bold conclusion, the DOL focuses on the idea that economic dependence is the prime determinant for considering whether a worker is an independent contractor or employee.

The DOL explains that a "worker who is economically dependent on an employer is suffered or permitted to work by the employer." Therefore, because the FLSA's definition of employ is "to suffer or permit to work," most workers are employees and not independent contractors. In attempting to clarify the proper classification of workers, the Guidance