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Attorneys React to DOL Misclassification Guidance

July 2015
Law 360

In an article published July 15, 2015 by Law360, Annette Idalski provides perspective on the U.S. Department of Labor’s recent guidance on determining whether a worker is an independent contractor or employee under the Fair Labor Standards Act. “The DOL, and in particular, its wage and hour investigators, are not always correct in their analysis of independent contractor status, as we saw in the district court decision in Gate Guard Services v. Thomas Perez and by the Fifth Circuit’s affirmation earlier this month,” said Idalski. “While employers should be mindful of the DOL’s guidance, companies should be prepared to challenge the agency and to take an offensive approach to investigations. We have learned over the last five years that while the DOL’s primary initiative is to crack down on misclassifications, it has not properly trained investigators to correctly conduct those investigations, gather relevant facts and properly analyze the findings.”