Does control over safety at a worksite determine whether workers are employees or independent contractors?
One of the last-minute labor regulations enacted by the Trump administration sets rules for determining whether workers are employees of a company or independent contractors.
Published in the Federal Register on Jan. 7, 2021, Independent Contractor Status under the Fair Labor Standards Act says “the nature and degree of control over the work” is one of two main factors in making the employee-or-contractor decision.
Where does control over workplace safety come in? The regulation says:
“Requiring the individual to comply with specific legal obligations, satisfy health and safety standards, carry insurance, meet contractually agreed-upon deadlines or quality control standards, or satisfy other similar terms that are typical of contractual relationships between businesses … does not constitute control that makes the individual more or less likely to be an employee under the [Fair Labor Standards] Act.”
The new regulation explains that if a requirement applies equally to people who are in business for themselves and to employees, imposing that requirement doesn’t prove whether the worker is an employee.
It’s often the case that contractors and employees on the same worksite are required to follow the same safety rules.
So control over safety doesn’t factor into the employee-or-contractor question.
This rule would take effect on March 8, 2021.
There’s no word on whether the new Congress will seek to withdraw this rule using the Congressional Review Act, which allows lawmakers to revoke rules within 60 legislative days after enactment.
Fred Hosier is the editor of Safety News Alert and has spent more than 20 years covering safety. He's been in the communications business since 1985, including 11 years in radio.
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