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EMPLOYMENT LAW UPDATE

Who’s an independent contractor? DOL explains

By Mike O’Brien bio

DOL tries to clarify independent contractor definition

The US Department of Labor (DOL) has proposed what it believes is a simplified definition of independent contractor (IC) for purposes of applying wage provisions of the Fair Labor Standards Act (FLSA), which applies only to employees. The new DOL proposal still focuses on the factors of economic reality, but tries to clarify how to apply them. DOL says employers first should focus on two core factors: (1) the nature and degree of the worker’s control over the work and (2) the worker’s opportunity for profit or loss based on initiative and/or investment. If both factors point to either employee status or IC status, that probably is the right classification. If not, DOL says three additional factors must be analyzed to determine the correct classification: (a) the amount of skill required for the work, (b) the degree of permanence of the working relationship between the worker and the potential employer, and (c) whether the work is part of an integrated unit of production. The proposed rule, which you can read here: Information on Proposed DOL Rule, is open for comment for about the next 30 days.

OSHA issues COVID-related citations

DOL’s Occupational Safety and Health Administration (OSHA) recently cited three health care systems for COVID-19 violations. The alleged violations included sharing used personal protective equipment (PPE), requiring the use of PPE but not providing the most effective equipment, and failing to train employees on the proper use of PPE. These citations are a timely reminder that although many states have passed COVID-19 business immunity laws, such laws do not shield employers from safety rules or workers compensation claims, and immunity is lost if a business acts to intentionally or recklessly endanger persons.

New executive order re: race/sex stereotyping

Concerned about a perceived ideology that America is “inherently sexist and racist,” President Trump has issued a new executive order aimed at combating race and sex stereotyping in employment. The new order prohibits federal contractors from implementing any training that addresses any form of race/sex stereotyping or race/sex scapegoating or that implicates conscious or unconscious bias concepts.

The following so-called “divisive” training concepts also are prohibited, that: (1) one race or sex is inherently superior to another race or sex; (2) the United States is fundamentally racist or sexist; (3) an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; (4) an individual should be discriminated against or receive adverse treatment solely or partly because of his or her race or sex; (5) members of one race or sex cannot and should not attempt to treat others without respect to race or sex; (6) an individual’s moral character is necessarily determined by his or her race or sex; (7) an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex; (8) any individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex; or (9) meritocracy or traits such as a hard work ethic are racist or sexist, or were created by a particular race to oppress another race. The order applies to federal contracts signed on or after Nov. 22, 2020. You can read more about the new executive order here: New Executive Order.

 


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