Partner Joshua Zuckerberg, a member of Pryor Cashman’s Labor and Employment, Litigation and Corporate Groups, spoke with Law360 for its story “Attorneys React To DOL Misclassification Guidance.”  The U.S. Department of Labor issued guidance on how to determine whether a worker is an independent contractor or an employee under the Fair Labor Standards Act.  The misclassification guidance says most workers qualify as “employees” under the FLSA's expansive definitions.  The article features quotes from prominent labor and employment attorneys on their views regarding why the guidance is significant.

According to Zuckerberg, “This guidance is consistent with the DOL’s long-held view that employers generally misclassify employees as independent contractors in an effort to avoid paying taxes, overtime, and extending other statutory protections. Moreover, the DOL has consistently argued that a true independent contractor is one who controls his/her own schedule, tools, and the means by which the job is accomplished, taking very little instruction from the client. Many employers still wrongly believe that they can simply agree with an individual to classify the relationship as an independent contractor relationship, and that will make it so. The DOL’s guidance here is a reminder that such an agreement will not be honored by the agency, nor by the courts. I don’t see this so much as a new development, as much as a reminder of the DOL’s abiding commitment to an expansive definition of employee, which extends statutory protections to as many individuals as possible. Employers who ignore this reminder do so at their peril."

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