Wage Hour Division Restores Investigation Protocol Website
By Ben Penn
The Labor Department restored web links March 8 to guidance for how investigators determine whether workers are employees or independent contractors. The move comes a day after Bloomberg Law reported the information was taken down from a DOL website.
Starting in recent days, the DOL Wage and Hour Division’s Field Operations Handbook website removed several links governing how investigators police workplaces for minimum and overtime violations, stating on the site that revised versions were “coming soon.” Two of the three reinstated chapters appear to not have any changes at all. The third and most significant chapter—covering the employment relationship—is revived to now reflect the agency’s return to a more narrow 2008 interpretation of what constitutes an “employee” under the Fair Labor Standards Act.
The 2008 fact sheet notably does not contain the statement from the previous version, dated May 2014, that most workers are employees and not independent contractors. Employees are covered by federal minimum wage and overtime laws, but contractors are not. The WHD in the Obama administration relied on the FLSA’s definition of “employ” as including to “suffer or permit to work” to find that most workers should be considered employees.
Business and worker representatives are closely watching the guidance for any signal about the agency’s retreat from an Obama-era enforcement regime that interpreted the FLSA as applying to a broad number of workers, many of whom the department said were misclassified as exempt from the wage hour law.
The Labor Department did not immediately respond to a request for comment March 8.
“The Department is making updates to its website to reflect established Administration policy, and updates will be completed shortly,” a DOL spokesman said on March 7.
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