EMPLOYEE OR INDEPENDENT CONTRACTOR
The Department of Labor has released a “Notice of Proposed Rulemaking” (“Notice”) today, which proposes to modify Wage and Hour Division regulations relating to the determination of whether an individual is an employee or independent contractor under the Fair Labor Standards Act (“FLSA”).
The Notice identifies the following factors for determining whether an individual is considered an employee or an independent contractor. No one factor is necessarily a determining factor in defining the relationship.
- Opportunity for profit or loss depending on managerial skill: This factor is based on many facts, including, but not limited to, if the worker can negotiate the charge for services provided, whether the worker can accept or decline work, whether the worker can choose the order or time when services are performed, whether the worker engages in marketing or advertising activities, and whether or not the worker makes decisions regarding hiring others, purchasing materials and equipment, and/or renting space.
- Investments by the worker and the employer. The worker’s investments need not be equal to the investments of an employer; however, the workers investments should support an independent business or serve a business-like function.
- Degree of permanence of the work relationship. This factor weighs in favor of the worker being an employee when the work is indefinite or continuous.
Nature and degree of control. Control is influenced by many factors, including work scheduling, supervision, and limitation on worker to serve others, The more control by the employer, the more likely the worker will be classified as an employee.
- Extent to which the work performed is an integral part of the employer’s business. If the work performed is integral to the employer’s business, the worker is more likely to be involved in an employer-employee relationship. If the services performed are not critical or central to the employer’s principal business, an independent contractor relationship is more likely.
- Skill and initiative. The more specialized the skill of the worker, the more likely the worker is an independent contractor.
The Notice is available here.
Comments on the proposed rule are due on or before November 28, 2022. As reported by NAHC, if the rule is finalized as written, the impact on the home-based care industry could be significant.
YOU CAN STILL REGISTER FOR THE NAHC
2022 HOME CARE AND HOSPICE CONFERENCE & EXPO
The conference is scheduled for October 23-25, 2022, in St. Louis and registrations can be made at 2022 Home Care Conference and Expo (a2zinc.net). Need more information? 2022 Home Care Conference and Expo (a2zinc.net).
The Health Group, LLC will be exhibiting. Stop by and visit with us at Booth #1225. We hope to see you there.