DOL Guidance

With so much COVID-related news, one might skip over other developments. For example, the DOL released several opinion letters relating to the Fair Labor Standards Act (“FLSA”). Of note was its opinion (reaffirming, in part, a recent final rule which also spoke to bonuses and other incentive-based pay) that employees’ hours need not fluctuate above and below 40 hours per week to qualify for the fluctuating workweek method of calculating compensation. 

The DOL also released a proposed rule regarding independent contractors. Most of the factors are not new; however, the DOL notably lays out an economic reality test and two core factors: (1) “the nature and degree of the worker’s control over the work,” and (2) “the worker’s opportunity for profit or loss.”

Business Takeaway: These are areas that have historically stymied business owners (and may carry significant financial penalties for infractions). Accordingly, the clarification and reaffirmation (and in the case of the proposed rule, potential broadening of the independent contractor definition) are welcome developments. Note, however, that the proposed rule is merely proposed at this point. Contact Corey at 414-446-8800 or corey@goldsteinsc.com for independent contractor analysis or information on employee compensation methods.

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