by Lance H. Delrie
Introduction
Congress passed the Fair Labor Standards Act (FLSA) in 1938 to combat “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.”[1] The Act established minimum wage, overtime pay, record keeping, and child labor standards that affect full-time and part-time workers in the private sector and in federal, state, and local governments.[2] The FLSA also established an enforcement arm—the Wage and Hour Division of the United States Department of Labor (DOL).[3] Courts have long viewed the FLSA as congressional action to “protect the rights of those who toil [and] who sacrifice a full measure of their freedom and talents to the use and profit of others.”[4] On January 10, 2024, the DOL issued a final rule titled “Employee or Independent Contractor Classification Under the Fair Labor Standards Act” (Current Independent Contractor Rule) that governs the classification of workers as employees or independent contractors under the FLSA. [5] This rule became effective on March 11, 2024 and replaced its 2021 predecessor.[6]
The FLSA requires covered employers to pay minimum wages and overtime compensation to employees under 29 U.S.C §§ 206-207. However, independent contractors are not covered under the Act and therefore, do not receive its protections. As a result, classification as an independent contractor abrogates employers’ duties to provide overtime pay to workers who work over 40 hours per week and to pay a minimum wage. The FLSA’s definition of employee and who exactly is covered under its protections has long stood on shaky ground.
I. The FLSA Created an Unworkable Definition of Employee
Congressional acts customarily begin by defining terms pertinent to the legislation, especially those concerning coverage. However, the FLSA does not define the term independent contractor and its definition of employee is overwhelmingly circular. The FLSA defines an employee as “any individual employed by an employer.”[7] Further, an employer is defined as “any person acting directly or indirectly in the interest of an employer in relation to an employee.”[8] Moreover, to employ a worker under the FLSA means to “suffer or permit to work.”[9] Collectively, the Act defines an employee as any individual who an employer, or any person acting directly or indirectly in the interest of an employer, suffers or permits to work. The result is an unworkable definition that is dispositive of FLSA coverage.
II. The Birth of the Economic Realities Test
The Supreme Court of the United States created a functional definition of an employee under the FLSA in the 1940s.[10] The Court held that the FLSA contemplates a broad understanding of employment.[11] Thus the term employee, as used in the FLSA, encompasses a broader range of workers than its common law counterpart which operates “solely by the idea of control which an alleged employer may or could exercise over the details of the service rendered to his business by the worker.”[12] However, the Court noted even an employment definition with great breadth “does not mean that all who render service to an industry are employees.”[13] The Court characterized employees under the FLSA as “those who as a matter of economic reality are dependent upon the business to which they render service.”[14] Therefore, the threshold inquiry is whether a worker is economically dependent on his employer for labor (an employee) or if he is in business for himself (an independent contractor).[15]
After Bartels, two paramount opinions set forth a multifactor test defining the economic realities of employment relationships. The first opinion decided both United States v. Silk and Harrison v. Greyvan Lines (Silks), which concerned whether certain workers in the coal and courier industries were employees or independent contractors under the Social Security Act.[16] The second opinion decided was Rutherford Food Corp. v. McComb, which concerned whether workers in the meat processing industry who acted as all-in-one butchers, beef boners, and order clerks were employees or independent contractors under the FLSA.[17] The Court decided Silk and Rutherford on the same day, and set forth what is now known colloquially as the economic realities test.[18] In Silk the Court stated that “degrees of control, opportunities for profit or loss, investment in facilities, permanency of relation and skill required in the claimed independent operation are important” in distinguishing employees from independent contractors.[19] Additionally, the Court expressly stated that “[n]o one [factor] is controlling nor is the list complete.”[20] In Rutherford, the Court applied the same factors and once again cautioned that determination of employment relationships depends on the totality of the circumstances rather than an isolated set of factors.[21]
In Schultz v. Cap. Int’l Sec., Inc., the United States Fourth Circuit Court of Appeal solidified the Silk factors as the threshold inquiry for FLSA coverage.[22] In determining the economic reality of security guards protecting a Saudi Arabian prince, the court distilled the Silk and Rutherford analysis into the following factors: (1) the degree of control that the putative employer has over the manner in which the work is performed; (2) the worker’s opportunities for profit or loss dependent on his managerial skill; (3) the worker’s investment in equipment or material, or his employment of other workers; (4) the degree of skill required for the work; (5) the permanence of the working relationship; and (6) the degree to which the services rendered are an integral part of the putative employer’s business.[23] Additionally, the Schultz court explained that “no single factor is dispositive; again, the test is designed to capture the economic realities of the relationship between the worker and the putative employer.”[24] Importantly, case law concerning FLSA coverage under the economic realities tests illustrates the ideal that no factor, or set of factors, is afforded greater weight than others; therefore, courts should utilize the totality of the circumstances approach.[25] Despite the Court’s pronouncements, the DOL took a different approach.
III. The DOL Adopts a Core Factors Test
On January 7, 2021, during Donald Trump’s presidency, the DOL finalized its first rule interpreting the economic realities test titled “Independent Contractor Status Under the [FLSA]” (Original Independent Contractor Rule).[26] This rule was to take effect on March 8, 2021.[27] The Original Independent Contractor Rule bent the economic realities test by designating two core factors to “improve the certainty and predictability of the test” rather than allocating equal weight to each of the factors as prior case law instructed.[28] The DOL’s use of core factors rendered the economic realities test more efficient to implement; and therefore, easier for businesses to avoid misclassification on the front end. The core factors included: (1) the nature and degree of the individual’s control over the work and (2) the individual’s opportunity for profit or loss.[29] When both core factors pointed towards the same classification, “there [was] a substantial likelihood that that classification [was] appropriate.”[30] Only when those two factors lead to different conclusions would the DOL consult three additional, less probative factors: (1) the amount of skill required; (2) the degree of permanence of the working relationship; and (3) whether the work is part of an integrated unit of production.[31]
In essence, the Original Independent Contractor Rule morphed the jurisprudential totality of the circumstances approach into a two-step analysis where the application of step two was contingent upon confusion in step one. Many people viewed this change as substituting the once equal-handed economic realities test for one that was more employer-friendly. [32] According to the National Alliance of Signatory Wall and Ceiling Contractors, the “weighted rule [was] a novel concept and [departed] from existing caselaw.”[33] Likewise, the National Employment Lawyer’s Association objected to emphasizing factors over the ultimate inquiry of whether the totality of the circumstances supported categorization of a worker as an employee.[34] Federal Trade Commissioner, Rebecca Slaughter, also objected that “[t]he [rule] [took] the Supreme Court’s five factor test, where all five factors are given equal weight, and narrows it down to focus on only two [core] factors.”[35] However, the DOL disagreed.[36]
The DOL determined that the economic realities test did not require factors to be unweighted or equally weighted because “the Supreme Court listed five factors that are ‘important for decision’ but did not treat them equally” in Silk.[37] The DOL explained that the Court focused on the fact that coal unloaders “had no opportunity to gain or lose” to conclude they were employees under the Social Security Act, while explaining the fact “[t]hat the unloaders did not work regularly was not significant.”[38] The Court further considered “the control exercised [and] the opportunity for profit from sound management” to conclude that truck drivers were independent contractors, without discussing any of the other economic reality factors.[39] Therefore, the DOL found that courts were affording the control and opportunity factors greater weight, even if they did not explicitly acknowledge doing so.[40]
IV. The DOL Suddenly Changed Its Tune
When the Biden Administration took office on January 20, 2021, the White House issued a memorandum directing federal agencies to postpone the effective dates of rules that had been published in the Federal Register but had not yet taken effect (Regulatory Freeze Memorandum).[41] In accordance with the Regulatory Freeze Memorandum, the DOL issued a notice of proposed rulemaking on February 5, 2021, proposing a 60-day delay of the Original Independent Contractor Rule’s effective date.[42] On March 4, 2021, the DOL issued the final rule titled “Independent Contractor Status Under the Fair Labor Standards Act (FLSA): Delay of Effective Date” (Delay Rule), which postponed the effective date of the Original Independent Contractor Rule from March 8, 2021, to May 7, 2021.[43] On March 12, 2021, the DOL issued a notice of proposed rulemaking to withdraw the Original Independent Contractor Rule instituting a 31-day comment period.[44] On May 6, 2021, the DOL issued a final rule titled “Independent Contractor Status Under the [FLSA]: Withdrawal” (Withdrawal Rule).[45] Pursuant to the Withdrawal Rule, the DOL withdrew the Original Independent Contractor Rule.[46]
The secret that administrative law is staunchly political is not well-kept. Now under President Biden’s leadership, the DOL found its own recently finalized Original Independent Contractor Rule to be “inconsistent with the FLSA’s text and purpose . . . [posing] a confusing and disruptive effect on workers and businesses alike due to its departure from longstanding judicial precedent.”[47] Under the DOL’s newfound view, valuing certain factors of the traditional economic realities test over others led to perversion. The DOL stated that it “now believes that the 2020 [Notice of Proposed Rulemaking] and 2021 IC Rule’s discussion of the case law in support of the core factors improperly simplified the courts’ analysis in an attempt to quantify the probative value of certain factors in a manner that is facially inconsistent with the decisions themselves.”[48] In less than two years, the DOL turned its view of the economic realities test upside down.
Unsurprisingly, a Texas Federal District Court ruled that the DOL’s Delay Rule violated procedural requirements of the Administrative Procedure Act (APA) because it failed to provide a sufficient notice and comment period.[49] The court also ruled that the Withdrawal Rule was arbitrary and capricious because the DOL failed to consider meaningful alternatives to complete recission.[50] The comment process was binary and mutually exclusive such that the only two options afforded to the public were keeping the Original Independent Contractor Rule in its then-current state or complete withdrawal. According to the court, the DOL “left regulated parties without consistent guidance” when it finalized the withdrawal.[51] The court’s remedy provided that the Original Independent Contractor Rule “became effective on March 8, 2021, the rule’s original effective date, and remain[ed] in effect.”[52] Therefore, the Original Independent Contractor Rule’s imposition of core factors was binding on regulated parties despite the DOL’s attempt to rescind it on seemingly pretextual grounds.[53]
The DOL did not abandon its original endeavor of rescinding the Original Independent Contractor Rule. On October 13, 2022, the DOL published a notice of proposed rulemaking to rescind and replace the Original Independent Contractor Rule. The DOL accepted comments from the public for 61 days, including a 15-day extension.[54] Commentators submitted approximately 55,400 comments.[55] On January 10, 2024, the DOL published the Current Independent Contractor Rule to revise its guidance on how to analyze whether a worker is an employee or an independent contractor under the FLSA.[56] The Current Independent Contractor Rule officially rescinded the Original Independent Contractor Rule and implements an analysis that the DOL feels is “more consistent with the Act’s text and purpose as interpreted by longstanding judicial precedent.”[57] Under this rule, the DOL has stated the following:
Consistent with a totality-of-the-circumstances analysis, no one factor or subset of factors is necessarily dispositive, and the weight to give each factor may depend on the facts and circumstances of the particular case. Moreover, these six factors are not exhaustive.[58]
The DOL’s reason for finalizing the Current Independent Contractor Rule is clear—to end what it viewed as the “misclassification of employees as independent contractors” under the Original Independent Contractor Rule.[59] The Current Independent Contractor Rule classifies more workers as employees than the Original Independent Contractor Rule.[60] Therefore, a greater total number of workers are afforded FLSA protections. The Current Independent Contractor Rule took effect on March 11, 2024.[61]
V. Unveiling Pretext: Why the DOL Changed its View
The DOL’s recission of the Independent Contractor Rule is largely clothed in the protection of workers from economic abuse via misclassification as independent contractors.[62] However, some research indicates that workers value their status as independent contractors over FLSA protection.[63] According to a study conducted by Beacon Research, about 85% of rideshare and delivery drivers prefer to retain their classification as independent contractors and oppose legislation that would categorize them as employees.[64] According to the U.S. Bureau of Labor Statistics, “[i]ndependent contractors overwhelmingly prefer their work arrangement (79 percent) to traditional jobs” and “[f]ewer than 1 in 10 independent contractors would prefer a traditional work arrangement.”[65] Surveyed workers cited that one reason they preferred an independent contractor status was the ability to remain partially attached to the labor market rather than being forced into full-scale employment relationships.[66] Additionally, the Harvard Business Review found that “[a]n increasingly large majority of independent workers say that independent work is less risky and more secure than traditional employment” in 2022.[67] In total, around 72.1 million Americans comprise the independent workforce,[68] and data shows that most forego the traditional employment relationship as a matter of preference rather than victimization. This warrants analyzing why the DOL actually rescinded the Original Independent Contractor Rule.
Political pressure is often the driving force of change in administrative law.[69] The Current Independent Contractor Rule is no exception. Labor unions oppose any increase in the number of workers classified as independent contractors because independent contractors do not routinely partake in collective bargaining.[70] Therefore, labor union membership suffers in an economy of independent contractors. Labor unions spare no expense on campaign contributions to Democrat candidates, such as President Biden, to secure a seat at the policymaking table.[71] These organizations often successfully exert political pressure favoring regulations that classify as many workers as employees as possible to spike membership dues.[72] On the campaign trail, President Biden emphatically stated, “I make no apologies. I am a union man. Period.”[73] President Biden received approximately $27.5 million in contributions from labor unions over the course of his campaign while Donald Trump received a mere $360,000.[74] In the year 2020, labor unions spent $70.7 million in direct contributions to Democratic Party candidates.[75]
Additionally, the Current Independent Contractor Rule increases tax revenue by classifying more workers as employees rather than independent contractors. Employers reduced federal, state, and local tax withholdings while saving up to 30 percent of payroll taxes otherwise paid for by employees when they classified would-be employees under the Current Independent Contractor Rule as independent contractors under the Original Independent Contractor Rule.[76] This is not to suggest that the current DOL regulation runs afoul of case law. Courts have historically implemented the economic realities test according to a totality of the circumstances. Therefore, courts applying the economic realities test have not expressly allocated more weight to any “core factors” as the Original Independent Contractor Rule mandated.
Therefore, the Current Independent Contractor Rule more closely comports with longstanding judicial application of the economic realities test than the Original Independent Contractor Rule. Classifying workers as independent contractors when they are, in fact, employees, denies workers FLSA protections and robs unemployment insurance and workers’ compensation funds of billions of dollars.[77] Therefore, to proponents of the Current Independent Contractor Rule, the Original Independent Contractor Rule was government-sanctioned payroll fraud and employee abuse. However, the DOL’s assertion that its current rule does a better job of protecting workers’ interest than the former rule is at least partially false considering the previously mentioned worker preferences. A more accurate statement regarding Current Independent Contractor Rule reads as follows: The DOL’s regulation that took effect on March 11, 2024, substituted its predecessor regulation with one that is aligned with precedential application of the economic realities test and generates more revenue in payroll taxes, more revenue for workers’ compensation funds, and more revenue for unemployment insurance funds.
The Current Independent Contractor Rule fails to instruct employers on how to properly order their conduct to avoid liability for employee misclassification. The rule mandates a highly fact-intensive inquiry guided only by an illustrative, six-factor list. This affords the DOL an alarming amount of discretion when determining liability for misclassification. While the Current Independent Contractor Rule more closely parallels case law, it is no more helpful to employers concerning front-end liability avoidance than the cobbled holdings that preceded it. For this reason, the rule already faces legal challenges.
A coalition of business groups renewed their objection to the U.S. Court of Appeals for the Fifth Circuit alleging that the new regulation is “so vague, amorphous, and context-dependent [that] it provides virtually no certainty or assurance that any given worker is classified correctly as an employee or contractor.”[78] A group of freelance writers also sued the DOL in Georgia federal court alleging that the rule is unconstitutionally vague and that the DOL violated the Administrative Procedure Act.[79] As case law surrounding the Current Independent Contractor Rule develops, it will likely result in strongly inconsistent and conflicting holdings. The rule fails to provide employers with enough certainty to consistently categorize workers as employees or independent contractors in its current state. Likewise, it does not provide courts with enough clarity to result in a consistent application. It is inevitable that circuit splits will be formed concerning whether certain groups of individuals are afforded FLSA protections, which will lead to more challenges of the Current Independent Contractor rule as too vague to uphold. Therefore, the future of the Current Independent Contractor Rule remains largely unknown.
[1] See Employee or Independent Contractor Classification Under the Fair Labor Standards Act, 89 Fed. Reg. 1638 (Jan. 10, 2024).
[2] Fair Labor Standards Act of 1938, 29 U.S.C. § 201 (2024).
[3] Id. § 204.
[4] Benshoff v. City of Va. Beach, 180 F.3d 136, 140 (4th Cir. 1999)
[5] Employee or Independent Contractor Classification Under the Fair Labor Standards Act, supra note 1.
[6] Id.
[7] 29 U.S.C. § 203(e)(1).
[8] Id. at § 203(d).
[9] Id. at § 203(g).
[10] Bartels v. Birmingham, 332 U.S. 126, 130 (1947); United States v. Silk, 331 U.S. 704, 712 (1947).
[11] Bartels, 332 U.S. at 130; Silk, 331 U.S. at 712.
[12] Bartels, 332 U.S. at 130; Silk, 331 U.S. at 712; Employee or Independent Contractor Classification Under the Fair Labor Standards Act, supra note 1. It provides: “Since the 1940s, the Department and courts have applied an economic reality test to determine whether a worker is an employee or an independent contractor under the FLSA, grounded in the Act’s broad understanding of employment.”
[13] Silk, 331 U.S. at 712.
[14] Bartels, 332 U.S. at 130 (emphasis added).
[15] The focal point is whether the worker “is economically dependent on the business to which he renders service or is, as a matter of economic [reality], in business for himself.” Schultz v. Cap. Int’l Sec., Inc., 466 F.3d 298, 304 (4th Cir. 2006).
[16] Silk, 329 U.S. 702; Harrison v. Greyvan Lines, 329 U.S. 709 (1946).
[17] Rutherford Food Corp. v. McComb, 331 U.S. 722, 724 (1947).
[18] Silk, 331 U.S. at 705. As this blog is concerned with the development of the economic realities test at large, the facts unique to these three disputes are inconsequential.
[19] Id. at 716; Rutherford Food Corp., 331 U.S. at 730.
[20] Silk, 331 U.S. at 716.
[21] Rutherford Food Corp., 331 U.S. at 730.
[22] Schultz v. Cap. Int’l Sec., Inc., 466 F.3d 298, 304–05 (4th Cir. 2006).
[23] Id. at 305.
[24] Id. at 304–05.
[25] Employee or Independent Contractor Classification Under the Fair Labor Standards Act, supra note 1. It provides: “In assessing economic dependence, courts and the Department have historically conducted a totality-of-the-circumstances analysis, considering multiple factors to determine whether a worker is an employee or an independent contractor, with no factor or factors having predetermined weight.” Id.
[26] See Independent Contractor Status Under the Fair Labor Standards Act, 86 Fed. Reg. 1168 (Jan. 7, 2021).
[27] See id.
[28] See id. Subsection (E) provides as follows: “Proposed § 795.105(c) was intended to improve the certainty and predictability of the economic reality test by focusing the test on two core factors: (1) The nature and degree of the worker’s control over the work; and (2) the worker’s opportunity for profit or loss. This focus is an important corollary of the sharpened definition of economic dependence to include individuals who are dependent on a potential employer for work and to exclude individuals who are in business for themselves.”
[29] Id.
[30] Id.
[31] Id. provides that the other economic reality factors—skill, permanence, and integration—are also relevant as to whether an individual is in business for himself. However, they are less probative than the core factors.
[32] Paul Erian and Scott Held, DOL Publishes Final Independent Contractor Rule (US), Employment Law Worldview (January 22, 2024) , https://www.employmentlawworldview.com/dol-publishes-final-independent-contractor-rule-us/ [https://perma.cc/UF4V-YSAH]. It provides: “As expected, the final rule rescinds “waning days of the Trump Administration.” Id.
[33] See Independent Contractor Status Under the Fair Labor Standards Act, supra note 26.
[34] Id.
[35] Id.
[36] Id.
[37] Id. See Part I (focusing on Two Core Factors is Consistent With the Economic Realities Test). See also Silk, 331 U.S. at 716.
[38] Silk, 331 U.S. at 717–18.
[39] Id. at 719.
[40] See Independent Contractor Status Under the Fair Labor Standards Act, supra note 26.
[41] Coal. for Workforce Innovation v. Walsh, No. 1:21-CV-130, 2022 WL 1073346, at *1 (E.D. Tex. Mar. 14, 2022); Memorandum for the Heads of Executive Departments and Agencies, 86 Fed. Reg. 7424 (Jan. 28, 2021).
[42] Coal. for Workforce Innovation, 2022 WL 1073346, at *2.
[43] Id.
[44] Id.
[45] Independent Contractor Status Under the Fair Labor Standards Act (FLSA): Withdrawal, 86 Fed. Reg. 24303 (May 6, 2021).
[46] Coal. for Workforce Innovation, 2022 WL 1073346, at *2.
[47] See Employee or Independent Contractor Classification Under the Fair Labor Standards Act, supra note 1.
[48] Id.
[49] Coal. for Workforce Innovation, 2022 WL 1073346, at *19.
[50] Id.
[51] Id.
[52] Id. at *20.
[53] Id. See also Maury Baskin et al., Federal Court Decision Protects Independent Contractor Status, Littler ASAP (Mar. 15, 2022), https://www.littler.com/publication-press/publication/federal-court-decision-protects-independent-contractor-status [https://perma.cc/H6BE-VPVH] (observing that the practical effect of the court’s decision was to restore the 2021 rule).
[54] See Employee or Independent Contractor Classification Under the Fair Labor Standards Act, supra note 1.
[55] Id.
[56] Id.
[57] Id.
[58] Id.
[59] Id.
[60] Id.
[61] Id.
[62] Id.
[63] Connor Yunits, 85% of Massachusetts App-Based Rideshare And Food Delivery Drivers Support Legislation That Protects Their Independent Contractor Status, And Includes New Benefits, Mass. Coal. for Indep. Work (Apr. 5, 2023), https://independentmass.org/news/driver-poll-2023/ [https://perma.cc/L3QD-X3YV]; Contingent and Alternative Employment Arrangements Summary, U.S. Bureau of Labor Stats. (June 7, 2018), https://www.bls.gov/news.release/conemp.nr0.htm [https://perma.cc/D433-BN66]; Jay Shambaugh, Ryan Nunn, & Lauren Bauer, Independent Workers and the Modern Labor Market, Brookings (June 7, 2018), https://www.brookings.edu/articles/independent-workers-and-the-modern-labor-market/ [https://perma.cc/5TJL-DYFA].
[64] Yunits, supra note 63.
[65] Contingent and Alternative Employment Arrangements Summary, supra note 63.
[66] Shambaugh, Nunn, & Bauer, supra note 63.
[67] Carolyn Ockels, Steve King, & Gene Zaino, Workers Don’t Feel Like a 9-to-5 Job Is a Safe Bet Anymore, Harv. Bus. Rev. (Mar. 23, 2022), https://hbr.org/2022/03/workers-dont-feel-like-a-9-to-5-job-is-a-safe-bet-anymore [https://perma.cc/JKP5-72SX].
[68] Stronger Together: Independent Workforce Soars to 72.1 Million Americans, Linkedin (Oct. 31, 2023), https://www.linkedin.com/pulse/stronger-together-independent-workforce-soars-721-million-lkmpe#:~:text=Today%2C%2072.1%20million%20Americans%20are,of%20the%20American%20independent%20workforce [https://perma.cc/XP2E-XGHG].
[69] See generally Mark Mancini, The Political Problem with the Administrative State, 2 J. Commonwealth L. 55 (2020).
[70] Tammy Dee McCutchen & Alexander Thomas MacDonald, The War on Independent Work: Why Some Regulators Want to Abolish Independent Contracting, Why They Keep Failing, & Why We Should Declare Peace, Fed. Soc’y (Aug. 10, 2023), https://fedsoc.org/fedsoc-review/the-war-on-independent-work-why-some-regulators-want-to-abolish-independent-contracting-why-they-keep-failing-why-we-should-declare-peace#_ftn49 [https://perma.cc/83XV-NDBF]; David McGarry, New York Floats a Crackdown on Independent Workers, Reason (Feb. 17, 2023), https://reason.com/2023/02/17/new-york-floats-a-crackdown-on-independent-workers/ [https://perma.cc/BMJ9-4EKJ] (reporting on New York S.B. 2052, a bill to implement an ABC classification test under New York law) (reporting that anti-contractor bills have often been backed by labor unions).
[71] McCutchen & MacDonald, supra note 70.
[72] Id.
[73] Alyce McFadden, Unions spent big to boost Biden. Will he return the favor?, Open Secrets (Feb. 19, 2021), https://www.opensecrets.org/news/2021/02/unions-spent-big-boost-biden/ [https://perma.cc/AB9X-QCL4].
[74] Id.
[75] Id.
[76] Independent Contractor Misclassification Imposes Huge Costs On Workers And Federal And State Treasuries, Nat’l Emp. L. Project (Oct. 26, 2020), https://www.nelp.org/publication/independent-contractor-misclassification-imposes-huge-costs-workers-federal-.state-treasuries-update-october-2020/ [https://perma.cc/JU57-857K].
[77] Id.
[78] Erian & Held, supra note 32.
[79] Id.