Wage and Hour Division Unveils Plans to Survey Workers' Knowledge of Their Classification as Employees or Independent Contractors; May Signal Plan to Reactivate "Right to Know" Rulemaking

From the advent of the Obama Administration, the U.S. Department of Labor has clearly expressed its intent to adopt an adversarial approach towards employers at the agency and sub-agency levels. As part of that strategy, the Department’s Wage and Hour Division (WHD) hired hundreds more investigators and conducted more worksite investigations; imposed harsher penalties, which it widely publicized using “name-and-shame” tactics; and even sponsored the development of smart phone applications, e.g., to help workers track their hours of work and alert consumers of businesses cited for wage and hour violations, among others.

Perhaps the most ambitious and provocative of WHD’s efforts was its plan to publish a “right to know” rule. Intended as a means to facilitate WHD’s broadside attack on what it claims is wholesale misclassification of employees by employers — both as exempt from overtime pay and as non-employee independent contractors — this rule would require employers to (1) provide each worker classified as either exempt or as an independent contractor with a written justification for that classification, and (2) maintain a written record of the justification for each position, which would be subject to inspection by the WHD.

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