Alexander Kritikos · January 2016
84 Geo. Wash. L. Rev. Arguendo 1
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. 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. 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.” And it’s been putting its money where its mouth is by increasing government-initiated investigations by almost 25% from 2009 to 2014. 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. 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.
