MPL General Counsel Corner – The Gig is Up, At Least For Those Subject to the FLSA

This past week, the Biden Administration’s Department of Labor proposed a new rule that makes it more difficult for companies to classify workers as independent contractors.  Under this proposed rule, workers would be considered employees (i.e., entitled to more benefits and legal protections….read minimum wage, overtime, unemployment insurance and social security) when they are economically dependent on a company.  This would be in stark contrast to the less restrictive test implemented by the Trump Administration.  

What does that really mean?  The DOL said it would consider the following factors:

• Opportunity for profit or loss depending on managerial skill;
• Investments by the worker and employer;
• Degree of permanence of the work relationship;
• Nature and degree of control by the employer over the worker;
• Whether the work is an integral part of the employer’s business; and
• Skills and initiative

The usual suspects (Uber, Lyft and Doordash) are the clear targets of this new, more restrictive rule.  However, on a more local level, this will likely impact contractors, truck drivers, landscapers and building maintenance companies.

For companies desperate to find help, payroll costs will increase.  This added financial burden would be on top of the already existing inflation headwinds and the prospect of a significant economic slowdown looming.  For “Gig Workers” and existing employees looking to make some money on the side, the availability of job choices will likely decline.  Only time will tell.  The final rule is expected to be implemented in 2023.

The bottom line is that the Gig is up on Gig Workers and the companies that use them, or at least those subject to the Federal Fair Labor Standard Act.

FYI, the definition of a Gig Work can be found here

A few things that may be of interest: 

• Latest from Silvercrest Asset Management Group (thanks to Sean O’Dowd for sharing)
  • Economic Review—Q4 2022 – Silvercrest (silvercrestgroup.com)
  • 2022 – Silvercrest Insights Magazine (silvercrestgroup.com)
• Littler Lightbulb: It’s Almost Election Time – What Do Employers Need to Know? | Littler Mendelson P.C. (thanks to Tedd Kochman for sharing)
• Webinar Series: Year-End Tax Strategies (eisneramper.com) (thanks to Carey Gertler for sharing)

Helpful Resource Pages

• Knowledge Center (eisneramper.com)
• Trout CPA Blog | Tax & Business-Related Topics
• News & Analysis | Littler Mendelson P.C.
• Insights, Analysis & Perspectives for Your Business | RKL LLP (rklcpa.com)
• NFIB Research: Data and Trends Affecting Small Business Owners | NFIB
• The Tax Warrior Chronicles (taxwarriors.com)

As always, please don’t hesitate to email myself (jsanders@mpl-law.com), Andy Miller (amiller@mpl-law.com), Christian Miller (cmiller@mpl-law.com), Erik Spurlin (espurlin@mpl-law.com), Brad Leber (bleber@mpl-law.com) or anyone in our office with questions or comments.  

Please see all of our prior updates at this link or if you would like to be added to our email list, please click here.