Much has been written in this space and elsewhere regarding federal and state efforts to crack down on the misclassification of individuals as independent contractors, rather than employees. Now, the effort has reached Congress. Last week, related bills targeted at reducing independent contractor misclassification were introduced in both houses of Congress. Dubbed the “Employee Misclassification Prevention Act,” the legislation would amend the Fair Labor Standards Act to impose new record keeping requirements on employers , would mandate that employers provide notice to individuals of their status as an independent contractor or employee, and would mandate that employers inform individuals on how to challenge the employer’s determination if they feel they have been misclassified. The proposed amendment would also sharply raise the penalties for worker misclassification. Text of the legislation may be found in S. 3254 and H.R. 5107, and both bills were referred to committees in their respective chambers. Passage is of these bills is uncertain. Regardless, though, we can expect to see continued stepped up administrative efforts to enforce existing laws.
Jonathan Keselenko — Foley Hoag LLP