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Greg Lisemby

Final Rule: Independent Contractor Status under the Fair Labor Standards Act

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29 CFR Parts 780, 788, and 795

A final rule clarifying the standard for employee versus independent contractor status under the Fair Labor Standards Act (FLSA) was announced by the Department of Labor (Department) on January 6, 2021. The effective date of the final rule is March 8, 2021 and includes a multi-factor test for determining whether workers are independent contractors, meaning that the business they perform work for doesn’t have to pay minimum wage or overtime that the Fair Labor Standards Act requires for employees.

Clarifications in the final rule

  • Sets forth an “economic reality” test to determine whether an individual is in business for him or herself (independent contractor) or is economically dependent on a potential employer for work (FLSA employee.)
  • Identifies and explains two “core factors” that are most probative to the question of whether a worker is economically dependent on someone else’s business or is in business for him or herself:
    • The nature and degree of control over the work.
    • The worker’s opportunity for profit or loss based on initiative and/or investment.
  • Identifies three other factors that may serve as additional guideposts in the analysis, particularly when the two core factors do not point to the same classification. The factors are:
    • The amount of skill required for the work.
    • The degree of permanence of the working relationship between the worker and the potential employer.
    • Whether the work is part of an integrated unit of production.
  • Provides that the actual practice of the worker and the potential employer is more relevant than what may be contractually or theoretically possible.
  • Provides six fact-specific examples applying the factors.

The final rule was published in the Federal Register on January 7, 2021.

Will the independent contractor status Rule be permanent? 

The rule clarifying independent contractor status is scheduled to become effective on March 8, 2021. However, a spokesperson for the Biden administration called out the rule as one that the administration is likely to revise in the days before its publication, bringing into question whether it will ever be permitted to take effect. In addition, independent contractor/employee status has been the topic of a great deal of litigation in recent years, so we can expect to see challenges should the rule is permitted to take effect.

Can Employers Require Workers to Become Vaccinated against Covid-19?

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The country’s first Covid vaccine could be authorized for emergency use as soon as today. If Pfizer gets the green light, distribution is set to begin next week.

Roughly six in ten Americans say they would get a vaccine, according to a recent survey by the Pew Research Center. Although this exceeds the figure from two months ago, to achieve herd immunity experts opine that about 70% of the population would need to be vaccinated or have antibodies. 

Under the law, an employer can generally require its workers to be vaccinated and can also fire an employee who refuses to do so. Some notable exceptions, however, exist to the general rule. For example, if a work force is unionized, the collective bargaining agreement may require negotiating with the union before an employer can implement a vaccine requirement.

Anti-discrimination laws also provide some protections to workers that are disabled. Under the Americans with Disabilities Act (the ADA), workers who do not want to be vaccinated for specific medical reasons are eligible to request an exemption. In this case, an employer may need to provide reasonable accommodation, such as allowing the employee to work remotely. 

Another exception exists under Title VII of the Civil Rights Act of 1964. Under Title VII, if taking the vaccine would conflict with a sincerely held religious belief, a worker may be able to opt out of a vaccine requirement.

The initial FDA approval is expected to be an “emergency use authorization,” as opposed to full approval. The law is unclear as to whether one can mandate vaccinations based on an emergency use authorization. As such, employers may need to wait until the FDA completes the entire approval process before putting vaccination requirement protocols in place. 

Employees Working Remotely May Be Entitled to Overtime

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overtime during COVID-19

Employees working remotely may be entitled to overtime. When state and local governments began issuing stay-at-home orders in response to the COVID-19 pandemic, many employees suddenly found themselves working from home. This change in practice has increased the likelihood that employees will be working overtime. In many instances, employees working remotely will have access to technology or be taking on new responsibilities that they didn’t have when they worked primarily from their offices.

Basic overtime regulations

The federal Fair Labor Standards Act (FLSA) governs overtime pay and record keeping for part-time and full-time workers in the private and public sectors. The FLSA divides employees into two categories. Nonexempt employees are generally paid hourly and are entitled to overtime pay at one and one-half times their regular rate of pay beyond a 40-hour workweek. Employees are exempt from minimum wage and overtime pay requirements if they work in certain executive, administrative, professional and outside sales positions. Exempt employees are generally salaried and not entitled to overtime pay. However, they must be paid the same amount per pay period, regardless of how many hours they work. That is, they must be paid the same even if they work more or less than 40 hours.

“Off the Clock” work may result in overtime

Recent guidance from the Department of Labor notes that employers may encourage or require employees to work from home to control the spread of COVID-19. Employers, however, are not required to have telework programs in place. Working remotely does not change the federal wage-and-hour laws; they apply the same to employees working from home. And the same overtime laws still apply to employees working from home.

With large numbers of nonexempt employees working remotely, employers may have difficulty monitoring the number of hours the employees are actually working. And many employers may be unable to use the same compliance measures they used in the workplace to monitor the hours worked by their employees. Without such measures, it’s easy to see how employees could end up working longer than a normal eight-hour workday. Typical off-the-clock tasks such as reading and responding to emails, text messages and phone calls or conducting “a few minutes of research” can add up over the course of a week and lead to a claim for unpaid overtime wages.

While working from home may cut down on the time employees lose to commuting, it may also increase the chances that employees working remotely feel compelled to work overtime. As such, any employers should take reasonable steps to ensure that its nonexempt workers are being paid overtime for each hour its remote workers are performing, including any “off-the-clock” work performed on mobile phones or tablets.

Greg Lisemby Named to National Trial Lawyers: Top 100 Civil Plaintiff Trial Lawyers List for 2017

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Greg W. Lisemby has been named to The National Trial Lawyers: Top 100 Civil Plaintiff Trial Lawyers list for 2017. The list is comprised of a premier group of attorneys who practice civil plaintiff law in the state of Texas. Only lawyers who have undergone a strict process of peer reviews are eligible to be named to the list. In order to qualify, an attorney must show leadership, and exhibit superior qualifications as well as leadership in their field. Objective, uniformly applied criteria are used to determine the attorneys who will be included.

A native of Houston, Greg earned his bachelor’s degree from Henderson State University, a master’s degree from the University of Rochester and a Juris Doctor degree from Southern Methodist University in Dallas, Texas.

Greg’s practice includes representing clients with wage and overtime claims as well as representing individuals suffering from serious injuries, including mesothelioma and other asbestos-related cancers. He actively litigates cases throughout the country, and has represented individuals residing in over twenty states.

Greg’s representation of an oilfield consultant stricken with mesothelioma was recognized to have resulted in the second largest toxic tort verdict of the year in Texas according to Top Texas Verdicts of 2009, a publication compiled by the verdict reporting service Verdict Search and distributed by the Texas Lawyer newspaper. The case resulted in a jury finding against Union Carbide Corporation as a result of the plaintiff’s exposure to asbestos-containing drilling mud additives.

Greg is an active member of the State Bar of Texas, the State Bar of New Mexico, the Texas Trial Lawyers Association, the Dallas Bar Association, the Texas State Bar Association, the New Mexico Trial Lawyers Association and the American Association for Justice. Prior to joining the DuBose Law Firm, Greg was an associate professor at Southern Arkansas University and a partner at Waters & Kraus, LLP.

principal office address:
4310 N. Central Expressway
Dallas, Texas 75206
Phone: 214.389.8199
Fax: 214.389.8399

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Four Corners Power Plant and Potential Asbestos Exposure

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The Four Corners Power Plant is located on the Navajo Indian Reservation near the borders of New Mexico, Arizona, Colorado, and Utah in the town of Fruitland, New Mexico. Units 1, 2, and 3 coal boilers were constructed beginning in 1963 with other units beginning operation in 1969. In the 1960s, asbestos was an integral component of large, field-erected boilers and in other construction materials. Asbestos impacted not only workers constructing power plants like Four Corners, but also employees, contractors, and visitors. Potentially, families of workers could also be exposed to asbestos hazards by inhaling fibers brought home on the clothing of plant workers.

Asbestos diseases are often fatal, especially mesothelioma. Other diseases include lung cancer and asbestosis. After an individual is exposed to asbestos, it can take 20 to 40 years or more for symptoms to develop.

If you worked at a power plant prior to the mid 1980s – and believe you were exposed to asbestos – it’s good to check with your doctor and let them know of your exposure so they can regularly track your health. Early detection of asbestos-related disease is important for treatment.