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In an opinion letter recently issued by the Department of Labor, the Wage and Hour Division (WHD) answer an inquiry about whether workers providing services in a virtual marketing marketplace were employees of independent contractors. These factors include: (1) The nature and degree of the potential employer’s control; (2) The permanency of the worker’s relationship with the potential employer; (3) The amount of the worker’s investment in facilities, equipment, or helpers; (4) The amount of skill, initiative, judgment, or foresight required for the worker’s services; (5) The worker’s opportunities for profit or loss; and (6) The extent of integration of the worker’s services into the potential employer’s business. If, according to the WHD: A business may have control where it, for example, requires a worker to work exclusively for the business; disavow working for or interacting with competitors during the working relationship; work against the interests of a competitor; work inflexible shifts, achieve large quotas, or work long hours, so that it is impracticable to work elsewhere; or otherwise face restrictions on or sanctions for external economic conduct, among others. The opinion letter continues with this type of analysis for all of these factors, and although, this opinion letter deals with just a particular company, this analysis is a lesson for us all in understanding the type of consideration the WHD might to in other cases.

I am known as "THE HR COMPLIANCE GUY" and as an HR Futurist. I am also an instructor at the University of Georgia School for Professional Education teaching human resources management. I have been a certified Senior Professional in Human Resources (SPHR) for over 20 years and I have been certified as SHRM-SCP from day one. With my background, knowledge and experience I help guide companies through compliance issues today and help them prepare for the world of work tomorrow.

The USDOL is revising the definition of “Regular Rate of Pay” Back in January, I wrote a post entitled What is the “regular rate of pay according to the USDOL. The USDOL has introduced a proposal to revise and clarify the definition of “regular rate of pay”, to clarify how to calculate overtime and to allow employers more freedom to offer employees more in the form of benefits that don’t have to be included in determining overtime rates. According to the proposal the new rule: The Department believes that its current regulations do not sufficiently reflect these and other such developments in the 21st-century workplace. In so doing, the Department intends to promote compliance with the FLSA; provide appropriate and updated guidance to employers with evolving worker benefits, including employers that offer paid leave; give clarity concerning the proper treatment of scheduling-penalty payments under the FLSA; and encourage employers to provide additional and more creative benefits without fear of costly litigation.

I am known as "THE HR COMPLIANCE GUY" and as an HR Futurist. I am also an instructor at the University of Georgia School for Professional Education teaching human resources management. I have been a certified Senior Professional in Human Resources (SPHR) for over 20 years and I have been certified as SHRM-SCP from day one. With my background, knowledge and experience I help guide companies through compliance issues today and help them prepare for the world of work tomorrow.