Navigating the New Independent Contractor Rule: Legal Implications and Business Strategies?

Legal Alert
from Attorney Bob

​2024 decided to keep up with 2023’s trend of changing employment laws faster than a chameleon on a disco floor. Just when you thought you had all the colors figured out, the beat changes.

​The U.S. Department of Labor's (DOL) recent final rule on the classification of independent contractors marks a significant shift. It presents both challenges and opportunities.

Key Highlights of the New Rule:

1. Totality-of-Circumstances Test: The rule revives the "totality-of-circumstances" test under the Fair Labor Standards Act (FLSA), replacing the 2021 rule's narrower focus. The rule adopts a holistic approach, evaluating multiple factors to determine whether a worker is an employee or an independent contractor.
   
   
2. Six-Factor Framework: It outlines six primary factors focusing on economic dependence, including opportunity for profit or loss, investment, permanence of relationship, degree of control, integral nature of work, and skill and initiative. Note, no one factor is dispositive and the DOL may consider additional factors that demonstrate the worker’s independence from the company.
   
   
3. Shift in Control Consideration: The rule expands the definition of "control" by employers, considering both exercised and reserved control.
   
   
4. Integration into Business: It emphasizes whether the work is critical or central to the employer's business, moving beyond the individual's role. This is very similar to California’s ABC test which has made it more difficult to establish independent contractor relationships in California.
   
   
5. Effective Date: NOW! The final rule became effective on March 11, 2024.

Legal Implications:

1. Increased Scrutiny: Businesses should expect more rigorous assessments of worker classifications, with a focus on the economic realities of the working relationship.
   
   
2. Litigation Risks: The ambiguity in the rule's application may lead to increased litigation, as businesses and workers navigate the new framework.
   
   
3. Compliance Strategies: Companies must review and potentially reclassify their workforce to ensure compliance, mitigating risks of penalties and back wages.

Strategic Considerations:

1. Policy and Contract Revisions: Update internal policies and contractor agreements to reflect the new legal landscape.
   
   
2. Proactive Analysis: Conduct an in-depth analysis of current contractor relationships against the new rule's criteria. Consider whether your independent contractors satisfy the new rule’s requirements in practice, not just on paper.
   
   
3. Training and Monitoring: Implement training for HR and management teams on the new rule and establish ongoing monitoring mechanisms. Do not just “set it and forget it”. 

​The DOL’s new rule demands careful legal and operational adjustments. By adopting proactive strategies and seeking expert legal guidance, businesses can navigate these changes effectively, ensuring compliance and maintaining a competitive edge.

---

“Legal Alerts from Attorney Bob,” are proudly presented by NextGen Legal: providing on demand, subscription-based legal advice, allowing you to pick up the phone when you have a question without worrying about costs. ​

Learn More About Our Subscriptions Including Our Innovative "Call Before You Send" Package

---

About Bob

​About Bob After more than a decade in traditional “Big Law” firms, including leadership roles, Bob wanted to eliminate the obstacles he saw prevent clients from reaching out for proactive legal advice. 

Enter NextGen Legal, founded to offer clients the expertise of an AmLaw 100-experienced lawyer on demand, without the uncertainty of hourly billing.

​​Rated a Rising Star by SuperLawyers (an accolade reserved for only 2.5% of attorneys in Wisconsin), Bob provides strategic legal advice and counsel to companies of all sizes, helping business leaders make confident, informed decisions. His expertise spans employment law, regulatory compliance, litigation, safety, corporate strategy, and risk mitigation. Bob excels in transforming complex legal challenges into clear, actionable business solutions, offering strategic guidance to leadership teams.

Limited Time Offer

WHLA Members receive 20% off all NextGen Legal subscriptions per month for a year with discount code: “WHLA”. The first five companies to sign up for NextGen Legal’s all-inclusive Fractional General Counsel subscription will receive a lifetime discount of $1,000 off per month with coupon code: “WHLAGC”. Learn more about NextGen Legal’s subscriptions here.