Introduction to the Fair Labor Standards Act (FLSA)

B. L IMITED E XCLUSION FOR E LECTED O FFICIALS , T HEIR S TAFF AND C ERTAIN E MPLOYEES OF L EGISLATIVE B ODIES Congress has specifically excluded elected officials and certain of their staff from FLSA coverage. The FLSA expressly excludes the following five classes of employees:

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Elected Officials;

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Personal Staff of Elected Officials;

 Policymaking Appointees of Elected Officials;

 Advisors on Constitutional or Legal Powers; and

Staff of the Legislative Branch. 31

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C. I NDEPENDENT C ONTRACTORS

Independent contractors who perform services for an agency, and who are not employees, are not covered by the FLSA and thus need not be paid according to the FLSA’s requirements. However, many employers mistakenly classify individuals as contractors when they are actually employees under the FLSA. If a contractor does not meet the criteria for “independent contractor” status, the person or entity must be treated as an employee for FLSA purposes. There is no single rule or test applied to determine whether an individual is considered a bona fide independent contractor under the FLSA. Instead, the courts and the DOL have adopted multi-factor tests to evaluate a worker’s independent contractor status. Some of those factors are:

 The nature and degree of control by the principal;

 The opportunities for profit and loss;

 The amount of individual investment in facilities and equipment;

 Whether the service rendered requires special skill;

 The permanency of the relationship; and

 The extent to which the services rendered are an integral part of the principal’s business.

Arguably, the most important factor is the right to control the manner and means of work at issue. Independent contractors customarily are engaged in an independent business, and they – not with whom they contract – retain the right to control the way the work is performed. Thus, in an independent contractor relationship, the employer is usually concerned with the finished product, or the final outcome, of a particular job. On the other hand, in an employer/employee relationship, the employer generally has a common law right to direct all facets of the manner of work.

Introduction to the Fair Labor Standards Act (FLSA) ©2020 (s) Liebert Cassidy Whitmore 12