DOL denies requests to extend worker classification comment period

October 22, 2020

Mark Schremmer

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The U.S. Department of Labor has denied requests from OOIDA and other groups to extend the comment period on a proposed “economic reality” test.

If accepted, the public would have been given an additional 30 days to comment on the Department of Labor’s proposal that attempts to tackle the controversial question of whether a worker is an employee or an independent contractor under the Fair Labor Standards Act. By denying the request, the public comment period ends Oct. 26.

“After considering the requests, the department has determined that 30 days is a sufficient period of time to comment, and therefore will not extend the comment period for this notice of proposed rulemaking,” the Department of Labor wrote on Wednesday, Oct. 21.

The Department of Labor announced the notice of proposed rulemaking in September. Earlier this week, OOIDA asked for the comment period to be extended by a month.

“The notice of proposed rulemaking seeks input from interested parties on a wide range of issues related to worker classification,” OOIDA wrote. “Given the diversity of working arrangements in the trucking industry, there are many issues that must be considered before we can determine the proposal’s impact on our membership. If not done carefully, changes to the classification test could upend a business model that has enabled millions of truckers to have a successful and secure career.”

According to the Department of Labor, the proposal would:

  • Adopt an “economic reality” test to determine a worker’s status as an FLSA employee or an independent contractor. The test considers whether a worker is in business for himself or herself or is economically dependent on a putative employer for work.
  • Identify and explain two “core factors,” specifically the nature and degree of the worker’s control over the work, and the worker’s opportunity for profit or loss based on initiative and/or investment.
  • These factors help determine if a worker is economically dependent on someone else’s business or is in business for himself or herself.
  • Identify three other factors that may serve as additional guideposts in the analysis: the mount of skill required for the work; the degree of permanence of the working relationship between the worker and the potential employer; and whether the work is part of an integrated unit of production.

As of Oct. 22, the proposal had received 219 comments. OOIDA has been working on its comments and will have them filed by Oct. 26.

Comments can be made by going to the Regulations.gov website and entering regulatory information number 1235-AA34. LL