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84 Geo. Wash. L. Rev. Arguendo 1 (2016)

handle is hein.journals/gwargu84 and id is 1 raw text is: An Unfair Presumption in the Fair Labor Standards Act Alexander Kritikos* The Obama Administration's Department of Labor has made it a top priority to find and investigate instances of employee misclassification- that is, designating a worker as an independent contractor rather than an employee.1 Proper classification is important because the Fair Labor Standards Act provides certain protections for employees-but not independent contractors-such as a minimum wage' and time-and-a-half overtime pay.3 The Wage and Hour Division of the Department has called misclassification one of the most serious problems facing affected workers, employers, and the entire economy.4 And it's been putting its money where its mouth is by increasing government-initiated investigations by almost 25% from 2009 to 2014.5 Due to those increased efforts, the Department of Labor has collected almost 30% more in FLSA-related back wages in 2014 than it collected in 2009.6 The Department has also partnered with the IRS and 26 states to try to better detect misclassification.' While these efforts should be applauded in many cases, not every instance of misclassification is unreasonable. Federal courts apply a multi- factored test to determine an employee's status. The Seventh Circuit, for example, looks to the following six factors: (1) the nature and degree of the alleged employer's control as to the manner in which the work is to be performed; (2) the alleged employee's opportunity for profit or loss depending upon his managerial skill; (3) the alleged employee's investment in I Noam Scheiber, As His Term Wanes, Obama Champions Workers' Rights, N.Y. TIMES, Aug. 31, 2015, http://www.nytimes.com/2015/09/01business/economy/as-his-term- wanes-obama-restores-workers-rights html?_r-0. 2 Fair Labor Standards Act (FLSA) § 6(a), 29 U.S.C. § 206(a) (2012). 1 FLSA § 7(a), 29 U.S.C. § 207(a) (2012). 4 Misclassification of Employees as Independent Contractors, DOL.GoV, http://www.dol.gov/whd/workers/misclassification/ (last visited Nov. 16, 2015). 5 Working For A Fair Day's Pay, DOL.GoV, http://www.dol.gov/whd/statistics/ (last visited Nov. 16, 2015) (citing a 23% increase in agency-initiated investigations from FY- 2009 to FY-2014). 6 Fair Labor Standards Act Back Wages, DOL.Gov, http://www.dol.gov/whd/statistics/statstables htm#flsa (last visited Nov. 16, 2015). 7 Misclassification of Employees as Independent Contractors, supra note 4.

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