The Department has issued regulations addressing how to analyze whether a worker is an employee or an independent contractor under the FLSA (29 CFR part 795, effective March 11, 2024). Employees receive the protections of the FLSA. Independent contractors are in business for themselves and therefore are not covered by the FLSA.
The U.S. Department of Labor (DOL) and other federal agencies, as well as many state governments, use specific criteria to distinguish between employees and independent contractors. These criteria help ensure that workers receive appropriate protections and benefits based on their classification. While there isn’t a single set of rules universally applied, the guidelines generally revolve around the degree of control an employer exercises over a worker. Here are some common factors considered:
Behavioral Control: This refers to the degree to which the employer controls how the work is performed. Factors include instructions given to the worker, training provided, and evaluation methods used. Employees typically receive detailed instructions on when, where, and how to work, while independent contractors have more autonomy in completing tasks.
Financial Control: This aspect examines the extent to which the worker has financial independence and investment in the tools and equipment necessary to perform the job. Independent contractors often invest in their own tools and bear the costs of running their business, while employees typically rely on the employer’s resources.
Type of Relationship: This factor looks at the nature of the relationship between the worker and the employer. Key considerations include written contracts, benefits provided, and the permanency of the relationship. Employees often have long-term relationships with their employers and receive benefits such as health insurance and paid leave, whereas independent contractors typically work on a project basis and are responsible for their own benefits.
Integration: This refers to how integral the worker’s services are to the employer’s business. If the worker’s services are essential to the regular operations of the business, they are more likely to be classified as an employee. Independent contractors usually provide services that are separate from the core activities of the employer.
It’s important to note that no single factor is determinative, and the classification depends on the overall relationship between the worker and the employer. Additionally, the criteria may vary depending on the specific laws and regulations of each jurisdiction. Misclassification of workers can lead to legal liabilities for employers, including penalties for unpaid taxes and benefits. Therefore, it’s essential for employers to carefully evaluate the nature of their relationships with workers to ensure compliance with relevant laws and regulations.