Tag: independent

  • WHD Issues Enforcement Guidance on Independent Contractor Classification – CUPA-HR

    WHD Issues Enforcement Guidance on Independent Contractor Classification – CUPA-HR

    by CUPA-HR | May 5, 2025

    On May 1, the Department of Labor’s Wage and Hour Division (WHD) issued a field assistance bulletin providing guidance on determining employee or independent contractor status under the Fair Labor Standards Act (FLSA) while DOL reviews the 2024 final rule, Employee or Independent Contractor Classification Under the Fair Labor Standards Act. The rule currently faces legal action in multiple federal court cases in which the Trump DOL has taken the position that it is reconsidering the 2024 rule, including whether to rescind the regulation.

    Simply put, the bulletin states that WHD “will no longer apply the 2024 Rule’s analysis when determining employee versus independent contractor status in FLSA investigations.” Instead, WHD will enforce the FLSA’s worker classification rules according to Fact Sheet #13, which was issued in 2008, and Opinion Letter FLSA2019-6, which was issued during President Trump’s first term.

    The opinion letter from Trump’s first term articulates WHD’s position on gig economy worker classification, ultimately finding such workers to be independent contractors because they work for the consumer and do not fit “any traditional employment paradigm” under the FLSA. The Biden administration previously withdrew the opinion letter, but it has now been reinstated as Opinion Letter FLSA2025-2.

    Fact Sheet #13 provides a broader perspective regarding the meaning of “employment relationship.” It specifically asserts that an employee under the FLSA is “one who, as a matter of economic reality, follows the usual path of an employee and is dependent on the business which he or she serves,” and that an employer-employee relationship under the law is tested by “economic reality.” It also lists seven factors that are considered significant by the Supreme Court in determining employee classification under the FLSA:

    • The extent to which the services rendered are an integral part of the principal’s business;
    • The permanency of the relationship;
    • The amount of the alleged contractor’s investment in facilities and equipment;
    • The nature and degree of control by the principal;
    • The alleged contractor’s opportunities for profit and loss;
    • The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor; and
    • The degree of independent business organization and operation.

    Looking Ahead

    The field assistance bulletin changes the enforcement priorities of WHD with respect to worker classification, though the Biden administration’s independent contractor rule remains in effect for the time being. Legal challenges against the Biden rule are ongoing, and the Trump administration has started reviewing the regulation, though there is no official process yet to rescind it.

    CUPA-HR continues to monitor for updates related to the independent contractor classification regulations and will keep members informed of future updates.



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  • Department of Labor Issues Independent Contractor Final Rule – CUPA-HR

    Department of Labor Issues Independent Contractor Final Rule – CUPA-HR

    by CUPA-HR | January 11, 2024

    On January 10, the Department of Labor’s (DOL) Wage and Hour Division (WHD) published the highly anticipated rule modifying the test for determining whether a worker is an employee or independent contractor under the Fair Labor Standards Act (FLSA). The final rule rescinds the current “core factors” method for determining independent contractor status under the FLSA and implements a return to a “totality-of-the-circumstance analysis.”

    Under the final rule, the method of determining worker classification will use a totality-of-the-circumstance analysis of multiple factors in an economic reality test, including the following six factors.

    • The extent to which the work is integral to the employer’s business.
    • The worker’s opportunity for profit or loss depending on managerial skill.
    • The investments made by the worker and the employer.
    • The worker’s use of skill and initiative.
    • The permanency of the work relationship.
    • The degree of control exercised or retained by the employer.

    Under the final rule, any particular factor could be determinative in establishing a worker’s classification, and additional undefined factors may be relevant in the analysis as well. The final rule is therefore a significant departure from the previous rule finalized in 2021, under which two core factors primarily guided worker classification determinations.

    The WHD has established March 11, 2024, as the effective date of this new rule, meaning institutions will need to be in compliance by then. The rule is likely to be challenged in federal court by business groups, and legislators in the U.S. House of Representatives and Senate have indicated they will introduce resolutions of disapproval under the Congressional Review Act in an attempt to nullify the final regulation. CUPA-HR will keep members apprised of any new updates as it relates to the status of this final rule.



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  • A background independent quantum gravity in terms of Relativity.

    A background independent quantum gravity in terms of Relativity.

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    Einstein’s Explanation of the Unexplainable

    Background independence is a condition in theoretical physics that requires the defining equations of a theory to be independent of the actual shape of spacetime and the value of various fields within it. In particular this means that it must be possible not to refer to a specific coordinate system—the theory must be coordinate-free. In addition, the different spacetime configurations (or backgrounds) should be obtained as different solutions of the underlying equations.

    Einstein defined gravity and the shape or geometry of space in terms of its energy density while defining the interaction of gravitating bodies in terms of a gravity wave moving through space. Therefore, to define a background independent quantum gravity one must first show why its energy is quantized and then show why it is independent of the geometry and the value of the various fields within the spacetime it occupies.

    Relatively and the science of wave mechanics tells us wave energy moves continuously through space-time unless it is prevented from doing so by someone or something interacting with it. This would result in its energy being confined to three-dimensional space. The science of wave mechanics also tells us the three-dimensional “walls” of this confinement will result in its energy being reflected back on itself thereby creating a resonant or standing wave in three-dimensional space. This would cause its wave energy to be concentrated at the point in space were a particle would be found. Additionally, wave mechanics also tells us the energy of a resonant system, such as a standing wave can only take on the discrete or quantized values associated with its fundamental or a harmonic of its fundamental frequency.

    This defines how and why the field properties of space time can evolve to create a quantized increase in the energy density and therefore gravity in a space-time environment.

    This suggests the quantization of gravity is not a fundamental property of space but a dynamic one of continuous property of space-time.

    As was mentioned earlier Einstein defined gravity and the shape or geometry of space in terms of its energy density. However as was shown above its value would be independent of the value of the various fields within it and the coordinate system in which it is formed because its geometry is only related to the number and quantum properties of particles in a volume of space.

    However, some feel that this would contradict the fact that gravity waves cause acceleration when they interact with objects which they feel suggests they are background dependent because they change geometry of space as they move through it.

    The reason this is not true is because the energy density associated with a mass is static or unchanging with respect to the geometry of space, it can be defined by the background independent equation of Special Relativity.

    However, because Einstein defined the propagation of energy including gravitational in terms of waves moving through space at the speed of light means the energy associated with a collision of two gravitating masses would result in that energy being radiated through space at the speed of light in the form of gravity waves.  This suggests they would obey the same laws that govern the relativistic properties of space and time associated with background. independent properties of electromagnetic energy in Special Relativity.

    This is how Einstein could have defined a background independent quantum gravity in terms of the relativistic properties of space time as defined by him.

    Einstein’s Explanation of the Unexplainable

     

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