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The Fair Labor Standards Act (“FLSA”) addresses the misclassification of employees (“Eees”) as independent contractors (“ICs”). There has been a lot of litigation and attorneys fees expended in companies’ misclassifying employees.  The U.S. Department of Labor (“DOL”) recently stated that it will revisit the issue by having public forums for ICs and employers later this month.  The National Labor Relations Board (“NLRB”) also said that it will revisit the issue as well.

You likely recall that Epps & Coulson, LLP had updated that the Biden administration put on hold the prior administration’s updated definition of true ICs vs Eees. In the interim, a court ordered that the prior administration’s rule would take effect as of March 8, 2021, a rule that is more advantageous to employers (“Eors”) than Eees. So, as attorneys, we can currently argue the prior administration’s more Eor advantageous rule as to who is an IC and who is an Eee controls.

Why is it important?  Besides the obvious class action litigation threats, there is the issue of damages and what Eors must do for Eees.  The FLSA requires Eors to pay minimum wage, overtime, healthcare, and other benefits, but ICs are not entitled to such benefits.  Instead, as is the benefit with the Gig Economy and industries, like Uber, Lyft and others, the ICs get more flexibility, can set their own schedules, can work for multiple companies, can expense items like a business, etc.  The DOL and NLRB appear to want to allow workers and companies the IC flexibility and ability to receive benefits (e.g. healthcare), without jeopardizing the IC status.

Epps & Coulson, LLP has experienced attorneys who have represented many clients in employment matters.  If you have any questions or need to engage legal counsel in connection with and Independent Contractor or employment case, please contact Dawn at

Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.  It is likely considered advertising.  Epps & Coulson, LLP encourages you to call to discuss these matters as they apply to you or your business.

Attorneys admitted to practice in California, New York, Colorado, Texas, and Oregon