The Department of Labor announced today it has withdrawn informal guidance that was widely regarded as an Obama Administration crackdown on companies’ use of independent contractors and of workers who in effect are employed by two companies jointly.
Of those, the 2015 guidance on independent subcontractors raised the greatest concerns among remodelers because it could have forced companies to treat those subs as employees and thus pay payroll taxes, unemployment insurance, and related costs on those workers.
“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 Labor Department’s statement said. “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.”
The July 15, 2015, administrator’s interpretation by the head of the Wage and Hour Division–which no longer is available on the department’s website–basically declared the government will be looking closer at a subcontractor’s economic independence when deciding whether that sub really ought to be regarded as an independent enterprise. That represented a shift from past practices in which government reviews appeared to focus on whether a company controlled a supposedly independent contractor by setting that person’s hours, providing tools, and requiring the contractor wear the company’s uniform.
“[N]o single factor, including control, should be over-emphasized,” David Weil, administrator of DOL’s Wage and Hour Division, wrote in that now-removed administrator’s interpretation. “Instead, each factor should be considered in light of the ultimate determination of whether the worker is really in business for him or herself (and thus is an independent contractor) or is economically dependent on the employer (and thus is its employee). The factors should be used as guides to answer that ultimate question of economic dependence.”
The interpretation came out three months after the Labor Department announced it had secured consent judgments with 16 defendants in Utah and Arizona who had claimed more than 1,000 of their workers were independent contractors. In that case, which yielded $700,000 in back wages and penalties, the defendants were accused of requiring the workers to become member/owners of limited liability companies. “These construction workers were building houses in Utah and Arizona as employees one day and then the next day were performing the same work on the same job sites for the same companies but without the protection of federal and state wage and safety laws,” DOL’s announcement said. “The companies, in turn, avoided paying hundreds of thousands of dollars in payroll taxes.”
The joint employer rule basically involves whether one company effectively controls all the activities of another company and thus is responsible for what that second company does to its employees. The rule had multiple implications for cases in which contractors used subcontractors and companies related to franchises.