Department of Labor v IRS – Subcontractors FLSA
IRS guide to subcontractors FLSA vs Department of Labor. The FLSA (Fair Labor Standards Act) was enumerated by the Department of Labor’s (DOL)) interpretation of recent Supreme Court decisions.
We received two emails on Monday with questions on how to determine the status of (what the employer thought were) subcontractors.
The DOL under the FLSA basically says the Supreme Court did not have a “one-size-fits-all” definition of whether a worker or group of workers are to be considered employees or a contractor.
After reading the DOL’s interpretation, one may want to look to the IRS for a better explanation and definition of a subcontractor.
The bottom line of analyzing the employment situation “is to determine the underlying economic reality of the situation and whether the individual is economically dependent on the supposed employer.” – Subcontractors are in a way economically dependent on their contractor so this is confusing.
The factors that the Supreme Court has considered significant, although no single one is regarded as controlling are:
(1) the extent to which the worker’s services are an integral part of the employer’s business (examples: Does the worker play an integral role in the business by performing the primary type of work that the employer performs for his customers or clients? Does the worker perform a discrete job that is one part of the business’ overall process of production? Does the worker supervise any of the company’s employees?); This one, after reading it many times, kind of makes sense.
(2) the permanency of the relationship (example: How long has the worker worked for the same company?); – I have known subcontractors that worked for their contractors for 30+ years.
(3) the amount of the worker’s investment in facilities and equipment (examples: Is the worker reimbursed for any purchases or materials, supplies, etc.? Does the worker use his or her own tools or equipment?); – There are many contractors that charge some of their materials back to the contractor.
(4) the nature and degree of control by the principal (examples: Who decides on what hours to be worked? Who is responsible for quality control? Does the worker work for any other company(s)? Who sets the pay rate?); The IRS also lists this one in their advice on subcontractor/employee determination.
(5) the worker’s opportunities for profit and loss (examples: Did the worker make any investments such as insurance or bonding? Can the worker earn a profit by performing the job more efficiently or exercising managerial skill or suffer a loss of capital investment?); and Certificates of insurance would take care of this one.
(6) the level of skill required in performing the job and the amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent enterprise (examples: Does the worker perform routine tasks requiring little training? Does the worker advertise independently via yellow pages, business cards, etc.? Does the worker have a separate business site?). This one makes sense.
The FSLA decision and the DOL‘s interpretation does make sense of what can be a very confusing matter. Four of the six in the list do make sense.
One area that seems to be the most confusing is the long-term business relationship between a contractor and subcontractor. The above list seems to hint at the longer the relationship, the more likely the contractor is actually an employee.
The amount of control of the contractor over the subcontractor would seem to be the most important factor.
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