Gig Companies' Lawyers 'Welcome' New US Labor Opinion Letter
"This new opinion letter gives a fair amount of freedom on how to engage workers outside of the normal employee models," one Big Law labor and employment lawyer says.
April 29, 2019 at 06:48 PM
4 minute read
The U.S. Department of Labor issued a business-friendly opinion Monday for the gig economy industry, telling one unidentified “virtual marketplace” employer that its workers are properly classified as independent contractors, not employees.
In a 10-page opinion letter dated April 29, Keith Sonderling, the acting administrator of the Labor Department's wage and hour division, tells the representative of an unnamed online platform that based on a six-factor test, “we conclude that your client's service providers are independent contractors, not employees of your client.”
“The facts in your letter demonstrate economic independence, rather than economic dependence, in the working relationship between your client and its service providers,” Sonderling wrote.
The letter, as is customary, does not name the company that sought the opinion. But its findings are a potential big-dollar boon to the employer—and those similarly situated in the on-demand economy. Independent contractors, unlike employees, are often not entitled to minimum wage, overtime and other benefits.
Morgan, Lewis & Bockius partner Michael Puma in Philadelphia said the letter continues a trend at the Labor Department where regulators are giving more flexibility to companies in defining “nontraditional relationships” with workers.
“The previous guidance from 2015 under the Obama administration was advocating for a more narrow view on what was considered an independent contractor and advocating that most workers were employees,” Puma said in an email. “Now, this new opinion letter gives a fair amount of freedom on how to engage workers outside of the normal employee models. While it's not a binding regulation, the guidance could be persuasive to courts.”
The Labor Department's opinion was released as the debate over worker classification has reached a critical moment. As Lyft Inc. and Uber Technologies Inc. move toward IPOs this year, companies in the so-called sharing economy are seeking regulatory assurance that they can continue to rely on a non-employee workforce.
In a March 1 S-1 filing with the U.S. Securities and Exchange Commission, Lyft listed potential legal proceedings that classify “a driver of a ridesharing platform as an employee” as a risk to its business. Both Lyft and Uber face misclassification suits from drivers and other contract workers.
California lawmakers are also considering legislation that would codify the California Supreme Court's 2018 decision in Dynamex Operations West v. Superior Court of Los Angeles County, which created a much more expansive test of what constitutes an employee. The bill's author, Assemblywoman Lorena Gonzalez, D-San Diego, has shown little inclination to create carve-outs for the ride-sharing industry.
A Fisher & Phillips analysis posted Monday afternoon by partner Richard Meneghello in Portland, Oregon, said the opinion letter is no “magic bullet” but still marked a “welcome” development for employers “and a preview as to how today's USDOL will treat misclassification concerns that fall into their laps from gig economy (and other) businesses.”
“The next step is for the agency to take formal action with respect to investigatory decisions based on this same reasoning, or possibly issue guidance or formal regulations along these same lines,” Meneghello wrote. “We can also hope that a court will look to this letter and adopt these same principles in an active piece of misclassification litigation.”
The Labor Department's opinion is posted below:
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllRegulatory Upheaval Is Coming. How Businesses Prepare and Respond Will Separate Winners and Losers
California-Based Portal Crypto Exchange Faces Delaware Investor Class Action
3 minute readTrending Stories
- 1What Are Forbidden Sexual Relations With Clients?
- 2AEDI Takeaways: Demystifying Hype, Changing Caselaw & Harvey’s CEO Talks State of Industry
- 3New England Law | Boston Announces New Dean
- 4Nordic Capital Plans to Acquire IP Management Solutions Provider Anaqua
- 5Criminalization of Homelessness Is Not the Solution
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250