Overtime, Independent Contractor Status on Regulatory Agenda for Department of Labor

A couple of weeks ago, the federal Department of Labor announced its regulatory agenda for the immediate future. The DOL does this twice a year, and the announcement indicates what its rulemaking and enforcement priorities will be.

The Wage and Hour Division will be busy in the coming months. According to the agenda, the DOL is looking at amending the Family and Medical Leave Act regulations to explicitly include same-sex spouses (following the Supreme Court’s decision in U.S. v. Windsor), and possible changes to child labor rules to clarify how old an employee must be to operate patient lifting equipment.

Two entries on the list follow directly from President Obama’s efforts to work outside of Congress to move his agenda forward: The DOL plans to propose rules raising the minimum wage for certain federal contractors to $10.10 an hour, and to consider revising the overtime exemptions for professional, administrative, and executive employees (the so-called “white collar” exemptions).

Finally, the DOL is continuing to look at problems of employee misclassification as independent contractors. in 2011, the DOL launched its “misclassification initiative,” intended to reduce misclassification and step up enforcement against employers whose “independent contractors” really should be classified as employees. As the DOL points out, this problem leads directly to reduced tax revenue to the state and federal governments. It also┬ádenies a range of benefits and protections (from minimum wage and overtime to family and medical leave and protections from discrimination) to the employees who are misclassified.

The DOL has already stepped up enforcement; check out the long list of press releases announcing these actions at its Employee Misclassification as Independent Contractors page. The DOL has also surveyed employees, to find out what they know about their rights and their status. In the regulatory agenda, the DOL proposes regulatory action to its record keeping rules, requiring employers to tell employees what their job status is (employee or independent contractor) and how their pay is calculated. There’s no timeframe or proposed “next steps” for this action, however. (In fact, the regulatory agenda says “next action undetermined.”) But it’s clearly a continuing enforcement priority for the DOL.