DOL Wage and Hour Division to “Clarify” FLSA Independent Contractor Definition

The DOL’s Wage and Hour Division expanded its already busy agenda, announcing upcoming guidance on the Fair Labor Standards Act’s definition of “independent contractor.” WHD Administrator David Weil, speaking at New York University School of Law’s 68th Annual Conference on Labor, disclosed during his keynote address that his office would soon issue an “Administrator’s Interpretation” that he indicated would “clarify” who qualifies as an independent contractor under the FLSA by providing a “very clear set of criteria.”

Administrator’s Interpretations have been few and far between since the DOL first began using them in 2010, and this is one of the few times that the Wage and Hour Division will have used them to announce a potentially significant shift in the law. Dr. Weil explained that the DOL planned to expand on the “economic realities” test used by many courts to distinguish between employees and independent contractors. As those of you who follow this blog know, independent contractor definitions impact not just what you traditionally think of as contractors, but also volunteers, franchisees, state law definitions of “employees,” and even the use of homeless people as wireless hotspots.

Unlike the new FLSA regulationswhich we expect as early as this week—and the DOL’s request for information on employee use of smartphones, which the DOL plans to publish in August 2015, the DOL has not yet announced a deadline for this new Administrator’s Interpretation, and is not bound by any notice-and-comment procedure prior to release. As soon as the Interpretation is released or we hear more information, we’ll pass it along.