DOL Replaces Guidance on Employee Classification

The U.S. Department of Labor (DOL) has withdrawn its 2014 guidance regarding the meaning and scope of the term “employment relationship” under the federal Fair Labor Standards Act (FLSA) and replaced it with its guidance from 2008. As a result of this move, the DOL no longer advises that “most workers are employees.”

Withdrawn 2014 Guidance
In 2014, the DOL issued guidance on how to determine whether an employment or independent contractor relationship exists for purposes of the federal FLSA. The guidance stated, among other things, “Applying the FLSA’s definition [of “employ”], workers who are economically dependent on the business of the employer, regardless of skill level, are considered to be employees, and most workers are employees.” Effective immediately, this guidance has been withdrawn.

2008 Guidance Once Again Effective
The 2014 guidance has been replaced by guidance from 2008. The 2008 guidance does not contain the guidance that “most workers are employees.” However, this guidance does include the same “economic realities” test present in the 2014 guidance, under which determination of employee status is made by considering the following factors:

  • Whether the work performed is an integral part of the employer’s business.
  • Whether the worker’s managerial skill affects the worker’s opportunities for profit or loss.
  • The worker’s relative investment compared to the employer’s investment.
  • Whether work performed requires special business skills, judgment, and initiative.
  • Whether the worker-employer relationship is permanent or indefinite.
  • The nature and degree of the employer’s control of the work.
Originally posted by HR360

New York Enacts Several Civil Rights Measures Affecting the Workplace

Changes Take Effect January 19, 2016

New York has enacted a series of changes to its workplace nondiscrimination laws. The changes take effect on January 19, 2016. A summary of the key changes is presented below:

  • Expanded Coverage for Sexual Harassment Actions. A new lawprovides that the state nondiscrimination law’s prohibitions againstsexual harassment apply to all employers—regardless of size. (Prior to January 19, 2016, the provisions regarding sexual harassment are applicable to employers with 4 or more employees.)
  • Pay Equity and Sharing of Wage Information. An amended lawprovides that (among other things) an employer cannot prohibit an employee from inquiring about, discussing, or disclosing his or her wages or the wages of another employee. However, an employer may—in a written policy provided to all employees—establish reasonable workplace and workday limitations on the time, place, and manner for such inquiries, discussions, or disclosures.
  • Discrimination Based on Family Status Prohibited. An amended law (applicable to employers with 4 or more employees) prohibits discrimination in employment based on familial status.
  • Clarification Regarding Pregnancy-Related Conditions. A new measure clarifies that employers with 4 or more employees are generally prohibited from refusing to provide reasonable accommodations to the known disabilities—or pregnancy-related conditions—of an employee/applicant in connection with a job or occupation sought or held. Additionally, pregnancy-related conditions must be treated as temporary disabilities under the law.

The governor’s office has issued a press release regarding the new legislation. Additional information regarding New York workplace nondiscrimination law is available from the New York State Division of Human Rights.

To review other state laws specific to New York, visit the State Lawssection, click on New York, and choose your topic of interest from the left-hand navigation menu.


MSHA announces results of July impact inspections

Hazards cited at Nebraska operation mirror those found following March fatality

ARLINGTON, Va. — The Mine Safety and Health Administration today announced that federal inspectors issued 225 citations and six orders during special impact inspections at 15 coal mines and six metal and nonmetal mines in July.

Begun in force in April 2010, the monthly inspections involve mines that merit increased agency attention and enforcement due to their poor compliance history or particular compliance concerns. MSHA conducted impact inspections at mines in Alabama, California, Indiana, Kentucky, Michigan, Nebraska, Pennsylvania, Tennessee, Virginia, West Virginia and Wyoming.
The details of one of the mines’ inspections are listed below:

MSHA conducted an impact inspection on July 29 at Ulrich Gravel, Inc., Ulrich Pit, in Valley County, Neb. Inspectors found hazards similar to those identified after a mining fatality occurred at this operation just five month ago. On March 17, a 44-year-old miner was maneuvering a loaded haul truck along an elevated roadway next to a dredge pond, when the vehicle drifted into the water. The victim was removed from the truck, and died two days later in a trauma center.

Enforcement personnel issued 13 citations to the mine operator for violations of various mandatory health and safety standards and two imminent danger orders removing miners from dangerous, unprotected walkways located near open water.
Inspectors cited the mine operator for the following violations:

  • Lack of berms or guardrails on mine haulage roads located adjacent to bodies of open water
  • Failure to provide berms for large pieces of equipment that travel the roadway
  • Obscured visibility caused by cracks in the windshield of a front-end loader
  • Failure to provide hard hats in an area where falling materials could strike miners
  • Handrails made of loose and sagging cable, creating hazards for miners walking across raised planks

During their inspection, federal enforcement personnel watched as a contract welder and a pumper slid down a bank and stepped on a Jon boat, then stepped from the boat to the pontoons of the dredge, to an 8-inch piece of pipe and to the walkway on which they were working. Those actions could easily have led to slipping, tripping or falls near water that could have resulted in drowning.

“MSHA is looking hard at conditions that can lead to fatal accidents to reverse the recent increase of deaths in the metal and nonmetal mining industry,” said Joseph A. Main, assistant secretary of labor for mine safety and health. “This inspection identified an apparent failure by the mine operator to take necessary actions to find and fix hazards similar to ones resulting in a miner’s death at the mine. The Federal Mine Safety and Health Act of 1977 holds mine operators accountable for conducting workplace examinations, and MSHA will enforce that law.”

Since April 2010, MSHA has conducted 987 impact inspections and issued 14,786 citations, 1,256 orders and 57 safeguards.

Editor’s Note: MSHA’s Monthly Impact Inspection List for July 2015 is available online.

MSHA News Release: [08/25/2015]
Contact Name: Amy Louviere
Phone Number: (202) 693-9423
Release Number: 15-1656-NAT

Suit seeks recovery of more than $1.6M in losses to employee profit-sharing plan after Illinois health care provider allegedly made improper distributions

CHICAGO — The U.S. Department of Labor is suing an Illinois home health care provider alleging that the company, the profit-sharing plan and two of its trustees improperly authorized distributions of $1,601,908 in profit-sharing plan assets, in violation of the Employee Retirement Income Security Act.

The department’s suit names Palos Hills-based Alliance Home Healthcare Inc.; the Alliance Home Healthcare Inc. Profit Sharing Plan; and company owners and plan trustees, Reginaldo Sulit and Dalisay Sulit.

The action alleges that the company President and Secretary/Treasurer, Dalisay Sulit and Reginaldo Sulit, respectively, and the company took distributions of more than $1 million, to which they were not entitled. The suit asserts that these plan withdrawals were not in the best interests of the participants and beneficiaries of the employee benefit plan, as required by the law. The withdrawn plan assets were used for non-Plan purposes, including directly benefitting the company.

“Plan funds must be invested in the interest of workers and retirees, not used to prop up a struggling firm,” said Jeffrey Monhart, regional director of the department’s Employee Benefits Security Administration in Chicago. “Too often, we see employee benefit plan funds used illegally by company owners and management, jeopardizing the financial security of workers and retirees.”

Filed in the U.S. District Court for the Northern District of Illinois, Eastern Division in Chicago, the suit seeks the restoration of all related plan losses, including lost opportunity costs, and a court order requiring the defendants to account for and restore losses to plan participants.

The department is also seeking to permanently enjoin the defendants from serving as fiduciaries or service providers to any plan covered by ERISA. The suit requests the appointment of an independent fiduciary, who would be compensated at the company’s expense, to distribute the plan’s assets to participants and beneficiaries and to terminate the plan.

Alliance Home Healthcare established the plan on Jan. 1, 2000 to provide retirement benefits to eligible employees. As of Dec. 31, 2006 — the last year an annual report was filed — the plan had 127 participants and $1.6 million in assets. Alliance Home Healthcare provides skilled health care services to patients in their homes.

EBSA’s Chicago Regional Office investigated the case, and the department’s Regional Office of the Solicitor in Chicago is litigating it. Workers and employers with questions about benefit plans can contact a benefits adviser toll free at 866-444-3272 or online at

Perez v. Alliance Home Healthcare Inc., Alliance Home Health Care Inc. Profit Sharing Plan, Reginaldo Sulit, Dalisay Sulit
Civil Action Number: 1:15-cv-07481

EBSA News Release: [08/26/2015]
Contact Name: Scott Allen or Rhonda Burke
Phone Number: (312) 353-6976
Email: or
Release Number: 15-1229-CHI

US Department Of Labor Provides New Guidance On Employee vs. Independent Contractor Classification

Most workers are employees under the [Fair Labor Standards Act’s] broad definitions.”

The debate over classification of workers as employees versus independent contractors has yet another chapter.  Last month, it was the California Labor Commissioner who sent ripples across the rideshare industry by telling Uber Technologies, Inc. that its drivers are employees, not independent contractors.  This month, the United States Department of Labor decided it was time to throw its hat in the ring and weigh in on the matter by way of a fifteen page Administrator’s Interpretation issued by Dr. David Weil.

The Fair Labor Standards Act (“FLSA”) defines employees, rather unhelpfully, as “any individual[s] employed by an employer.”  The FLSA’s definition of “employer” is similarly unilluminating: “employer”  “includes any person acting directly or indirectly in the interest of an employer in relation to an employee.”  To “employ” under the FLSA is “to suffer or permit to work.”


If you’re confused as to whether a worker is an employee or independent contractor based on these definitions, you’re not alone.

The Department of Labor’s new interpretation explains that an “economic realities” test should be utilized to determine worker classification.  Under this test, the key inquiry is whether a worker is economically dependent on the employer, thereby making the worker an employee, versus whether the worker is truly in business for him or herself and thus, an independent contractor.  Determining the economic independence of a worker should occur on a case-by-case basis, using a multi-factor test that has been developed by a series of federal court decisions.  Factors that should be customarily examined include:

(i)            the extent to which the work performed is an integral part of the employer’s business;

(ii)           the worker’s opportunity for profit or loss depending on his or her managerial skill;

(iii)          the extent of the relative investments of the employer and the worker;

(iv)         whether the work performed requires special skills and initiative;

(v)          the permanency of the relationship; and

(vi)         the degree of control exercised or retained by the employer.

No one factor is determinative and “each factor should be considered in light of the ultimate determination of whether the worker is really in business for him or herself… or is economically dependent on the employer.”  The interpretation emphasizes the FLSA definitions were deliberately designed to provide a broad scope of statutory coverage and the “Act’s intended expansive coverage for workers must be considered when applying the economic realities factors.”  The interpretation also explains “the economic realities of the relationship and not the label an employer give it are determinative.  Thus, an agreement between an employer and a worker designating or labeling the worker as an independent contractor… is not relevant to the analysis of the worker’s status.”

The correct classification of workers matters both for workers and employers alike.  A worker’s classification affects entitlement to legal protections such as overtime pay and minimum wage, amongst other protections under the Act.  This DOL interpretation comes only two weeks after the DOL unveiled its proposed rule that is anticipated to result in approximately 5 million currently exempt workers shifting classification to non-exempt workers, thereby becoming entitled to minimum wage and overtime protection under the FLSA.

Originally posted by Shar Bahmani of The National Law Review