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Andrea Kirshenbaum Co-Authors Article on the Dual DOL and IRS Threats Presented by Independent Contractor Misclassification for The Legal Intelligencer

September 9, 2015

In a September 10, 2015 article for The Legal Intelligencer, Employment Principal Andrea M. Kirshenbaum examines the Department of Labor's (DOL) recent interpretation of how the Fair Labor Standards Act (FLSA) applies to the misclassification of independent contractors. 

The authors note that the DOL Administrator David Weil's interpretation (AI), "concludes that 'most workers are employees under the FLSA,'" and go on to examine how this may impact employers. 

  • "While the AI sets out a multifactored test to determine whether a worker qualifies as an employee under the FLSA, it almost singularly focuses on a worker’s economic dependence on the business in question. Simply stated, according to the DOL, if a worker is economically dependent on a business, that worker is an employee of that business."
  • "The ability of employers to assess worker status will be complicated by the fact that the IRS uses a different test to assess the same question. As confirmed by a fact sheet released by the IRS in August, the test used by the IRS is less broad than the AI’s test, and focuses on the issue of control, not economic dependence. It is unclear whether the broader DOL test will drive, as a practical matter, employment tax assessments by employers and the government."