United States: Comments Submitted On Worker Classification Study To U.S. Department Of Labor

Last Updated: March 28 2013
Article by Richard J. Reibstein, Lisa B. Petkun and Andrew J. Rudolph

On Monday, March 11, 2013, Richard Reibstein, one of the co-publishers of this blog, submitted 17 pages of detailed Comments to the U.S. Department of Labor's proposed data collection for its Worker Classification Survey. The Comments, which were officially received By the Labor Department on March 12, noted that, absent substantial revisions to close to three dozen of the proposed interview questions to be asked of workers selected for the survey, the information to be collected would not likely serve any "practical utility."

The Survey had been announced by the Labor Department on Friday, January 11, 2013 and was the subject of a post by the co-publishers of this blog on Monday, January 14.

The Comments submitted by Richard Reibstein included both general comments as well as specific comments.

A portion of the general comments submitted by Richard Reibstein include the following:

As currently drafted, the information to be collected is unlikely to serve the interests of the Department in obtaining information that has "practical utility" because (a) many of the questions as drafted use language that is confusing, imprecise, and subject to more than one interpretation; (b) some of the questions seek information that is not pertinent to the stated purpose of the worker classification study; and (c) some of the questions fail to use classification-neutral wording and this can lead to skewed results. It is respectfully submitted that the proposed questions in both the worker interview and the employer interview parts be modified to (a) use classification-neutral language, (b) clarify language that is confusing, confounding, ambiguous, and imprecise, and (c) eliminate language that is neither meaningful nor pertinent to the issue of worker classification. Using the proposed language without eliminating these flaws in the current drafts would likely produce results that are skewed, meaningless, inaccurate, and without practical utility.

The specific comments addressed 35 of the proposed questions to be asked of workers to be interviewed; the specific comments also addressed five paragraphs of the proposed interview statements to be made to employers and employer representatives who will be surveyed.

The following are two examples of the specific comments  addressing the proposed interview questions of workers :

22. In Item *QBEHAV1 on pages 25-26 of the Worker Misclassification Survey (OMB Attachment C Survey), Part III, Section 1 ("Behavioral Control"), the question states: "On your [main] job, do you report directly to a manager, supervisor, foreman or someone else who regularly oversees or approves HOW you do your work?" This is perhaps the most important question in the survey, yet it is phrased inconsistently with the well-established prevailing state of the law with regard to behavioral control, which has been consistently stated by the courts as whether the hiring party has the right to direct or control the manner and means by which the services are provided. Whether the hiring party "approves how you do your work" may apply even if the hiring party does not direct or control how the services are performed, but expresses approval of the way in which they are performed. Further, the issue of whether the hiring party controls or directs how the worker performs the services is distinguished from whether the hiring party controls what the worker produces (i.e., the end-product of the services), but these two issues are often confused by many and will likely be lost upon many respondents unless the distinction is drawn to their attention. Therefore, this key question should, it is respectfully submitted, be modified to state in sum and substance: "On your [main] job, do you report to a manager, supervisor, foreman or someone else who regularly oversees your work and directs and controls not only what you do, but also HOW you do your work?"

29. In Item *QRELATE1 on page 29 of the Worker Misclassification Survey (OMB Attachment C Survey), Part III, Section 3 ("Relationship"), the question states: "Besides your [main] job, do you perform similar work for others [IF NECESSARY: other companies or businesses]?" This question, it is respectfully submitted, does not address the key inquiry regarding control in a worker classification inquiry. As the courts have made clear, it is not mainly what the worker does but, more importantly, what the worker has the right to do. Thus, if a bona fide IC has the genuine right to perform similar work for other companies or businesses but chooses not to exercise that right for business or personal reasons at the time he/she is responding to the question, or for the past x number of months or for some other duration, the fact that he/she chooses not to exercise that right at the present time (or even for a reasonable period of time) is not an indicia of employee status. Rather, it is an indicia of IC status that the worker has such genuine right. Thus, the question should be modified in sum and substance as follows: "Besides your [main] job, do you have the right, if you so desire, to perform similar work for others [IF NECESSARY: other companies or businesses]?"

These Comments by Richard Reibstein also addressed statements to be made by the interviewers to employers and employer representatives, including the following:

Page 4 of Section 2 of the "Justification" (Part A) indicates that the DOL is having only 16-20 in-depth interviews conducted of employers, employer consultants, and employer representatives. This is woefully inadequate to gain a full understanding of worker classification in the U.S. from the employer/business perspective. Although Abt Associates "anticipates that recruitment will be challenging," there is no reason not to conduct far more employer/business interviews. The information gathered from only 16-20 representatives of employers/businesses, and to focus on industries that the DOL "has identified as having a higher likelihood of employees being misclassified," is likely to produce highly skewed information and data.

The full set of Comments submitted by Rich are available here.

Federal agencies typically review closely all comments submitted, and is expected that the Labor Department will review closely these 17 pages of Comments and revise their interview materials for both workers and employers/employer representatives.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Lisa B. Petkun
Andrew J. Rudolph
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