In December, the APA submitted comments to the U.S. Department of Labor (DOL) Wage and Hour Division (WHD) on a proposed rule that would modify the definition of an employee versus an independent contractor under the Fair Labor Standards Act (FLSA; 87 F.R. 62218, 10-13-22).
Conflicting Definitions Are a Concern
The APA’s primary concern is about the conflicting definitions of an employee and of an independent contract that exist at both the federal level and the state level. Mainly, the APA is concerned with the conflicting definitions of employee and independent contractor between the proposed WHD rules and the common law definition used by the IRS.
The current definitions and the different tests used to determine whether a worker is an employee or an independent contractor can yield different answers, so the APA asked the WHD to better align the FLSA definition of an independent contractor with the IRS.
The APA is also concerned with conflicting definitions between the federal government and state and local jurisdictions. In some cases, it is possible for the same worker to be classified as an employee at the federal level and an independent contractor at the state level.
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Adam Prinzo is the Assistant Manager of Government Relations at APA.