Congresswoman Elise Stefanik (R-NY-21) and Senator Tim Scott (R-SC) collaboratively released a bill today called the Modern Worker Empowerment Act. This bill would “update the Fair Labor Standards Act (FLSA) to codify the common-law definition of 'employee,' aligning the FLSA with other federal laws, as well as numerous state statutes and recent Supreme Court decisions.”
In a one-pager explaining the purpose of the bill, Sen. Scott’s office advocates strongly for the common-law employee test, indicating that it is used by a variety of federal agencies and it “relies on multiple factors, focused primarily on control and independence, in order to determine the appropriate classification for a given worker.”
The common-law test is one of the best-understood tests to determine employee status. Revising the FLSA in a targeted and intelligent way to bring it in line with this test would go a long way towards alleviating the grey areas that still exist around independent contractor classification.
The “suffer and permit” language of the FLSA has always been excessively broad, and many independent contractor classification scenarios come down to a determination of an individual judge or panel of judges in each case. Since judicial opinions can vary so significantly, sometimes IC cases with nearly identical facts will result in opposite decisions from judges in different circuits. Aligning the FLSA with the standard that the rest of the government uses would be a good first step in alleviating the lack of clarity that exists in the status quo.
CLDA supports Rep. Stefanik and Sen. Scott in their efforts to advance this helpful legislation. CLDA staff have communicated with both offices expressing our desire to provide continuing support here and have agreed to coordinate and share information going forward.
