Skip to main content

Department of Labor Finds That Gig Workers Are Contractors, NOT Employees


Stop me if you have heard this before:  Gig workers have long argued that they are employees, not contractors, and therefore are entitled to the protections afforded under the Fair Labor Standards Act ("FLSA").  (For those readers that have been following along over the past few years, this argument should not come as much of a surprise.  After all, the Department of Labor has previously been thought to being ready to weigh in on the issue before...as has the Ninth Circuit Court of Appeals, a UK Court of Appeal, and a New York State Labor Review Board, among others.)

Well on Monday, the Department of Labor issued an opinion letter in which it said that gig workers at an unidentified company were contractors and therefore not employees entitled to the protections afforded under the FLSA.  (This particular company "connects service providers to end-market consumers to provide a wide variety of services, such as transportation, delivery, shopping, moving, cleaning, plumbing, painting, and household services."  The "issue" addressed here is whether the company was correct in classifying these gig workers as independent contractors rather than employees.)

One of the reasons pinpointed by the Department of Labor as to why these gig workers were contractors rather than employees was the fact that these workers had a great deal of control over their own work.  These gig workers were not requited to perform a minimum number of cleaning jobs, were allowed to sign up with other competing companies (or work directly with customers), and allowed these gig workers to ask for higher pay than had previously been set.  Now as some have noted, gig workers that work for Uber, GrubHub, Lyft, etc. have a different working relationship than what was addressed by the Department of Labor in this opinion letter.  (For instance, Uber & Lyft drivers have work rates that are determined by these companies' policies, could risk not being able to drive for Uber or Lyft if a driver rating falls below a certain threshold, etc.)

Now some readers might ask what binding precedential value this Department of Labor opinion letter holds.  I will preface this with a note that the opinion letter is not the be all, end all for either side's argument.  However, while the opinion letter is not binding in a court of law, it serves to add further ammo to the argument of those who seek to classify gig workers as contractors rather than employees.  With a Department of Labor under President Donald Trump that has tended to favor employers in recent years, I would expect similar employer friendly opinion letters going forward (should the Department of Labor delve further into the gig worker contractor v. employee dispute.)


For a copy of the Department of Labor's opinion letter:  https://www.dol.gov/whd/opinion/FLSA/2019/2019_04_29_06_FLSA.pdf
 

Comments

Post a Comment

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum,...
Post a Comment
Read more

San Diego Rolls Back Vaccine Mandate For City Workers

Last Tuesday, the San Diego City Council voted to do away with the vaccine mandate for city employees. The city’s vaccine mandate that was in place required city workers to get the coronavirus vaccine or risk termination.  Perhaps to this surprise of no one, the city’s policy came under fire with 14 employees being terminated and over 100 other employees resigning.  With the coronavirus subsiding, including in Southern California, the San Diego City Council took action. Now, bear in mind, the repeal of the vaccine mandate does not take place immediately. With that being said, the mandate will be repealed March 8th.  I suppose the question now is, what other cities or regions follow San Diego’s lead? For additional information:   https://www.sandiegouniontribune.com/news/politics/story/2023-01-24/san-diego-repeals-controversial-covid-19-vaccine-mandate-citing-drop-in-cases-hospitalizations
Post a Comment
Read more

NLRB: Former Employee Cannot Be Barred From Work Premises After Filing Wage Suit

MEI-GSR Holdings, LLC - NLRB Facts :  MEI-GSR Holdings, LLC d/b/a Grand Sierra Resort & Casino ("GSR") operated a facility that included a hotel, casino, restaurant, clubs, bars, and a pool which were all open to the general public.  Tiffany Sargent ("Sargent") was briefly employed by GSR as a "beverage supervisor" in December of 2012.  After her employment ended, Sargent continued to socialize at one of the clubs.  GSR had a long standing practice of allowing former employees to patronize its facility and did not prohibit Sargent from doing so.  In June of 2013, Sargent and another employee filed a class and collective action against GSR for alleged unpaid wages, in violation of the Fair Labor Standards Act and Nevada law.  In July of 2014, GSR denied Sargent access to an event at one of the clubs.  GSR followed up with a letter and stated that with the on-going litigation (from the wage suit), it decided to bar Sargent from the premises. ...
1 comment
Read more