Earlier this spring, the U.S. Department of Labor proposed a rule to address joint employer status under Fair Labor Standards, Family and Medical Leave, and Migrant and Seasonal Agricultural Worker Protection acts, a rule the department says would simplify compliance for employers and help employees
understand their rights.
Should the proposed rule take effect, the DOL says it will achieve its other goal of resolving significant differences among circuit courts.
Whether that is true is under debate among Virginia employment attorneys.
Nicholas Woodfield, a principal at Washington, D.C.-based The Employment Law Group and past president of the Virginia Employment Lawyers Association, said the attempt to simplify could create a murkier legal environment.
“There’s a value to simplification, except when the simplification leaves everyone in a gray area,” Woodfield said. “As jobs become more developed in certain areas that were never thought of at the time that the Fair Labor Standards Act was enacted, I think it just makes it harder to figure out.”
[…]
Under the proposed new rule, a four-factor test seeks to simplify the picture in a way that lawyers view as pro-employer, though they differ on the degree.
The DOL is accepting comments on the proposed rule through June 22.
Woodfield cautioned that the drop in the number of factors may not achieve the government’s goal of clarity and simplification.
“These factors are very vague and they’re kind of in opposite, so when you’ve got very high-level factors, I think it makes it harder to prove you’re an employee as opposed to proving you’re not,” Woodfield said. “I think it just makes it murkier — the fewer guideposts you have, the less certainty you have.”
[…]
Woodfield said that at first blush, the impact of the proposed rule would differ depending on which side an attorney represents — employers or employees.
“If you’re representing employers, I’d say you know there’s less guidance here and that you may have more exposure because you can’t necessarily prove they’re not an employee if the factors are not helpful,” Woodfield said. “If you’re looking at representing the cases, you might be reluctant to take them because you can’t be as certain that you win it.”
Woodfield also anticipated broad guidelines potentially causing challenges, namely as new jobs and employment spaces — with examples including “influencers” and jobs related to artificial intelligence — begin to blossom.
“They’re not like the North Star, where you know if you’re heading towards it, you’re always heading north,” Woodfield said. “If you’ve got the North Star, and you’re traveling underground, it doesn’t give you any guidance. It’s tough with new jobs, because some broad rules still apply, but it is very, very hard to figure out.”
Woodfield juxtaposed this idea with the fact that when the FLSA was enacted, “there were no computer employees,” meaning federal guidance had to evolve. “Now if you have someone who comes in, and they are an AI influencer doing something to benefit some employer, these factors are very vague.”
