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It’s Halloween Weekend. What’s your costume? My youngest is Ariel from the Little Mermaid so she’s informed me I’ll be going as Sebastian. I’m not sure what to make of that…
House Cybersecurity Chairman to Run for Chicago Alderman
Representative Lamont Robinson, Chair of the House Cybersecurity Committee, announced earlier this week his intention to run for Chicago City Council. The position is open as Ald. Sophia King is running for mayor. Rep. Robinson has been endorsed by Toni Preckwinkle and other leaders in his district. This election will take place on Feb. 28th, with a runoff election scheduled for April 4th if necessary.
Representative Robinson was great in his first year chairing our committee. We’d hate to lose him, but it’s also nice to see good people moving up.
Extension of Comment Period for Proposed Rule: Employee or Independent Contractor Classification
Tuesday, the U.S. Department of Labor announced a 15-day extension of the comment period for its notice of proposed rulemaking (NPRM), Employee or Independent Contractor Classification Under the Fair Labor Standards Act, which was published in the Federal Register on October 13, 2022.
Publication of the NPRM in the Federal Register started the comment period that is now being extended from 46 days to 61 days. The comment period will now close on December 13, 2022, instead of November 28, 2022. All comments submitted (including duplicate comments) become a matter of public record and will be posted without change to regulations.gov, including any personal information provided.
My earlier analysis of the proposal is below.
ICYMI…In the last edition: Independent Contractors- Federal DOL Proposes Its Own Definition
This week the US Department of Labor released updated regulations to determine employee or independent contractor classification under the Fair Labor Standards Act (FLSA). https://public-inspection.federalregister.gov/2022-21454.pdf
The FLSA does not define what constitutes an employee versus an independent contractor. As a result, which workers are to be treated as employees has come via court decisions. Courts have devised an “economic realities test” to balance factors to determine whether a worker is so dependent on the business to which they render services that they must be treated as an employee.
The DOL attempted to institute its own rule in 2021 but later withdrew that rule before it went into effect. This new proposal would create a multi-factor test:
- The worker’s opportunity for profit or loss depending on managerial skill
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Investments made by the worker and the employer. Note that the DOL notes that the use of a personal vehicle or vehicle leased by a worker to perform work will generally not be indicative of independent contractor status
- Degree of permanence of the work relationship
- Nature and degree of the business’s control over the worker
- Extent to which the work performed is an integral part of the employer’s business
- Whether the worker uses specialized skills in performing the work
While the proposal is just a proposal, the guidance is obviously designed to decrease the number of workers employers classify as independent contractors and increase the number of workers classified as employees. Don’t forget that this is just one statute in which employment classification matters. Illinois has its own minimum wage and overtime laws, and several of those laws contain different definitions of who is an employee and who is a contractor. The DOL’s proposal does not affect that. It also does not affect the definition of employee vs. independent contractor under all the other federal or state employment statutes, such as the National Labor Relations Act.
The Chamber is still watching closely for further bills designed to curtail the usage of independent contractors to be introduced in Illinois.
Other Legislative Updates
As a reminder, the General Assembly has released the schedule for veto session. Lawmakers will be back in Springfield Tuesday, November 15 -November 17 as well as November 29-December 1.
View and download the veto calendar here.
Lawmakers have been informed to keep January 4-10 open on their calendars for possible lame duck session dates.
Articles of Interest
Amazon to let customers pay with Venmo at checkout
What is the worker’s rights amendment?
Worries over Amendment 1 raising Illinois taxes
Endorsement Guide for the 2022 Illinois General Election
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