Comment from James Mark

Thank you for the opportunity to submit this comment concerning the NPRM governing Independent Contractor Status under the Fair Labor Standards Act (RIN 1235-AA34). I own and operate a nurse registry in Florida and support the NPRM. The proposed regulations provide significant clarity and predictability for determining an individual’s status as an employee or independent contractor under the Fair Labor Standards Act. There are many tests for determining independent contractor status at the Federal and state levels and of I believe the proposed five-factor test with two “core” factors, together with the guiding principles of economic dependence and control will be highly effective in achieving the desired clarity and certainty.

I urge DOL to consider including an example of the application of the proposed regulations to a nurse registry, as this type of business model is unique. My nurse registry haa adopted the guidance contained in Field Assistance Bulletin 2018-4 (July 13, 2018) (the “FAB”), and the guidance contained in this FAB is consistent with the proposed regulations.

From my perspective, as a small busines owner, there is a compelling need for making the determination of worker status under the FLSA clearer and more predictable. There is nothing worse than a “gotcha” becuase one box was not checked correctly. A small business cannot afford the cost of litigation to determine whether its independent contractor relationships will be respected for purposes of the FLSA. We want to comply but we need guidance that allows us to know how to comply. The FAB has been of immense value to the industry in this regard. I am hopeful that the final regulations will preserve the clarity DOL has provided for nurse registries by including in the regulations, or in the accompanying preamble, an example illustrating the application of the proposed new test to our business model.

Comment ID: WHD-2020-0007-1762 | 26-Oct-20

Categorized under Independence

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