Since 2010, the First and Only Blog Dedicated to Independent Contractor Law

Over 1,500: The Number of Comments Submitted to Labor Department on Proposed Rule Governing Independent Contractor Status

In response to the U.S. Department of Labor’s proposed regulation on independent contractor status under the Fair Labor Standards Act, over 1,500 individuals and organizations have already filed comments prior to the deadline at midnight tonight, October 26, 2020. Those submitting comments in support of the proposed rule include the U.S. Chamber of Commerce and the National Association of Manufacturers; those opposed include the AFL-CIO, the Teamsters Union, and the National Employment Law Project. The comment period was only 30 days in duration.  Regardless of the results of the upcoming election, it appears that the Labor Department will seek to issue a final rule before the end of this calendar year.  The publisher of this legal blog filed comments as well, which are reproduced in their entirety below.  They neither support nor oppose the proposed rule but rather suggest the Labor Department make clarifications and offer examples of some of the factors to be considered in determining if a worker or group of workers should be classified as independent contractors or rather employees under the FLSA. At the conclusion of this post, we provide an analysis and offer readers a key takeaway: regardless of the issuance of the final rule impacting this particular federal law (the FLSA), companies should take steps to enhance their compliance with all applicable federal and state IC laws and minimize their potential exposure to IC misclassification liability.

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Polar Opposites Among Independent Contractor Tests: September 2020 News Update

Last month presented a clash between the enactment of a new version of the most restrictive ‎state law test in the nation for independent contractor status and the issuance of a proposed ‎federal regulation that would create one of the more lenient legal standards for IC status. The ‎state law, California Assembly Bill 2257 (AB2257) which Governor Newsom signed into law on ‎September 4, 2020, replaced Assembly Bill 5 (AB5), which had codified California’s version of ‎the so-called ABC test. Many commentators regard this ABC test, which changed decades of ‎settled law, as the death-knell for the overwhelming number of California independent contractor ‎relationships that were structured in a lawful manner, causing many freelancers to lose their work ‎opportunities with both gig economy and traditional businesses. Meanwhile, the U.S. Labor ‎Department issued a proposed regulation establishing a test for IC status under the Fair Labor ‎Standards Act that essentially preserves the legitimate nature of many independent contractor ‎relationships but did so in a manner that may insulate more businesses from misclassification ‎liabilitys. ‎

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Much Ado About (Almost) Nothing: The Labor Department’s New Proposed Independent Contractor Classification Rule

Earlier today, the U.S. Labor Department issued a proposed regulation addressing the ‎classification criteria of workers as independent contractors or employees under the Fair Labor ‎Standards Act (FLSA). Unlike regulations with hard and fast rules, this proposed regulation is in ‎the nature of an administrative interpretation articulating the Labor Department’s view of the ‎law. It analyzes decades of court decisions and seeks to issue a uniform interpretation of those ‎cases for the courts to apply in the future. Yet at the same time, the proposed regulation includes ‎a 90-page preamble that acknowledges that the courts have, with few exceptions, uniformly ‎applied the test for independent contractor status under the FLSA. The proposed rule, therefore, ‎if issued in final form, would provide little guidance to the public or the courts. But it will shine ‎a brighter light on the issue of independent contractor misclassification. Companies would be ‎wise to enhance their independent contractor compliance, such as in the manner noted in the ‎‎“Takeaway” below.

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Bloggers and Pharmacy Delivery Workers Are Next Group of Workers to Score Large Payouts in Independent Contractor Misclassification Class Actions: August 2020 Legal News Update

Last month’s legal news in the area of independent contractor misclassification and compliance was dominated by two key arbitration decisions by federal circuit courts: one that compelled arbitration of an IC misclassification lawsuit by drivers delivering restaurant food through the GrubHub platform, and the other where a motion to compel arbitration was denied in an IC misclassification lawsuit by drivers making last-mile deliveries of packages for We commented on the Amazon case in a separate blog post last month and in a Law360 article quoting the publisher of this blog, where we noted that most companies should not be concerned about the Amazon decision because the arbitration clause used by Amazon appeared to be rather unique. Two of the other cases we report on below are meaningful for businesses in two industry sectors: blogging and pharmacies.

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AB2257: Not Much Better Than AB5 for Most Industries in California Using Independent ‎Contractors

Many independent contractors complained of dire consequences after Assembly Bill 5 (AB5) became effective in California on January 1, 2020. Following intense lobbying and public relations campaigns, independent contractors in 15 industries have now been added to AB5’s list of freelancers who are eligible for an exemption from California’s extraordinarily onerous version of the so-called “ABC” test for independent contractor status. The new version of AB5 is called Assembly Bill 2257 (AB2257). It was signed into law by the Governor of California last Friday, September 4, 2020 and replaces AB5. Except for those fortunate industries and service providers now eligible for exemption from the ABC test, the new law only tweaks AB5 and is essentially unchanged in any meaningful way for the overwhelming number of companies and freelancers doing business in California. But as noted below, there are strategies that can be used by many companies in an effort to comply with AB2257.

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Forget Those Amazon Decisions: Companies Using Independent Contractors to ‎Transport or Deliver Products Can Still Compel Arbitration

Two recent federal appellate court decisions struck down Amazon’s arbitration clause ‎in its agreements with workers who deliver its packages to Amazon customers. Those ‎two rulings have created great concern for businesses in the transportation industry. ‎However, it is important to understand that the contractual language at issue in these ‎two cases is unique to Amazon. In most instances, arbitration agreements with class ‎action waivers can be enforceable, even when applied to workers who deliver or ‎transport products in interstate commerce. This blog post provides tips for companies in ‎all industries (including the transportation, delivery, and logistics sectors) how to more ‎effectively draft arbitration provisions with class and collective action waivers in their ‎independent contractor agreements.

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Drivers Put Trucking and Logistics Companies in Cross-Hairs of Independent Contractor Misclassification Cases: July 2020 News Update

Six of the nine cases reported below from July 2020 involve drivers’ class action lawsuits alleging independent contractor misclassification against transportation and logistics companies. They include three settlements, the largest of which could cost the defendant trucking company as much as $28 million. The fourth and fifth cases involve conflicting decisions by key appellate courts as to whether arbitration clauses are enforceable against drivers found to be engaged in interstate commerce. The sixth case pertains to a court’s certification of yet another class action IC misclassification case by drivers brought against a transportation company.

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Should Your Business Require Independent Contractors to Sign Coronavirus Waivers and Releases of Liability?

Many companies are asking, should we require independent contractors to sign advance waivers and releases of liability for contracting the Coronavirus? Most commentators have urged companies to refrain from requiring employees to sign such waivers and releases, but there is little reason not to require independent contractors to sign well-drafted Covid-19 liability waivers.

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Baked Goods Companies Targeted by Distributors in Independent Contractor Misclassification Class Actions: June 2020 News Update

We highlight in this past month’s news update two class action settlements entered into by bakery companies alleged to have misclassified product distributors as independent contractors. One of those baked goods companies has now incurred over $47 million settling IC misclassification cases brought by distributors. We also comment below on a new class action lawsuit filed against one of those bakery product companies.

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May 2020 Independent Contractor Misclassification and Compliance Law News Update

May 2020 was not a busy month for the filing of new independent contractor misclassification lawsuits, as some courts were closed for new filings and many lawyers were working remotely. But five cases came to our attention that provide meaningful lessons for companies seeking to comply with laws impacting independent contractors or defending against class or collective actions brought under such laws.

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About The Publisher

Richard ReibsteinRichard Reibstein is the publisher of this legal blog, which has been, since its inception in 2010, the only legal blog in the country dedicated exclusively to the subject of independent contractor compliance and misclassification. Read more

JDSupra The publisher of this blog, Richard Reibstein, was named “Top Author” in JD Supra Readers’ Choice Awards (2016, 2017, 2019 and 2020) for his thought leadership on the topic of “Employer Liability” issues as well as “Top Author” on “Class Actions” in 2016 and 2020.

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Locke Lord LLP

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