On June 7, 2017, the United States Department of Labor (the “DOL”) announced that prior interpretations by the Wage and Hour Division on independent contractors and joint employment were being withdrawn. The guidance on independent contractors came from an Administrator’s Interpretation released in 2015, in which the DOL concluded that under the broad definition of “employ” under the Fair Labor Standards Act, that “most workers are employees under the FLSA.” In 2016, the DOL released its guidance on joint employment, concluding that virtually all related employers that exercise control over a worker are joint employers, so that there is overtime liability for aggregated hours between the joint employers
In its press release announcing the withdrawn guidance, the DOL stated that “Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law. The department will continue to fully and fairly enforce all laws within its jurisdiction, including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.” However, this signals a policy shift away from the Obama Administration in how DOL under the Trump Administration will interpret and seek to enforce matters relating to joint employment and independent contractor.
It is important to note that these do not preempt state laws that provide greater protection to employees, such as under New York Labor Law. Please contact the Law Offices of Yale Pollack, P.C. if you have any questions about your workplace rights.