US Department of Labor

As this blog previously covered here and here, the United States Department of Labor under President Obama cracked down on misclassification of workers as independent contractors and broadly interpreted who was considered a “joint employer.” Today, new U.S. Secretary of Labor Alexander Acosta announced that the DOL would withdraw its previously-issued guidance from 2015 and 2016 on these topics. You can find the announcement here.

This should be welcome news for most companies as the previous guidance took an expansive view of when a worker is considered an “employee” (as opposed to an independent contractor) and when a company is considered an “employer” of a particular worker (particularly in the context of temporary hires and workers employed through staffing agencies). Interestingly, as you can see here, the DOL has removed the previous guidance from its website altogether.

However, it is important to note that the actual significance of this announcement is difficult to predict and remains to be seen. First, as the announcement makes clear, this is not really a change in the law per se because the guidance was only the DOL’s interpretation of the law. But, this announcement does signal that the DOL under Secretary Acosta will be taking a different approach to the concepts of joint employment and independent contractor classification. Second, it is unclear how this announcement affects the fact sheets and other DOL “guidance” on its website.

As to the issue of classifying a worker as an employee or an independent contractor, the FLSA (and the DOL’s interpretation of it) is only one of many things to consider. For instance, the Internal Revenue Service and the South Carolina courts have their own interpretation of what constitutes an “independent contractor,” and employers would be wise to tread carefully when making classification decisions as the penalties for misclassification can be steep.

As to the joint employment issue, the Fourth Circuit (which includes South Carolina) has developed its own test to determine when an entity is a joint employer for purposes of Title VII liability. The Fourth Circuit’s test is outlined in detail in this blog post and the announcement from the DOL will not impact this decision.