The Modern Workplace

• The nature and degree of the workers control over the work. DOL examples of facts more indicative of contractor status include: (1) workers setting their own work schedule; (2) workers selecting their own assignments; and (3) workers retaining the ability to work for others.
• The workers opportunity for profit or loss. DOL examples of facts more indicative of contractor status include: (1) the exercise of personal initiative, including managerial skill or business acumen; and/or (2) the management of investments in or capital expenditure on items such as helpers, equipment, or material.

Three Guiding Factors:
The three guiding factors of the economic reality test, which are to be applied if the core factors are not determinative, are as follows:

• The amount of skill required for the work. An analysis should be done of whether the work requires a specialized training or skill or whether the worker depends on the employer for training? If the employer provides the training, the worker is more likely an employee.
• The degree of permanence of the working relationship between the worker and the potential employer. An analysis should be done as to whether the work is of a definite and longer-term duration or sporadic and short-term? A working relationship that is indefinite in duration or continuous suggests that the worker is an employee.
• Whether the work is part of an integrated unit of production. The Final Rule looks at whether the work is a component of the potential employers integrated production process for a good or service. The more integrated the work, the more likely the worker is an employee.