Where does the DOL define an "employee"?

KathiHR · January 2005

The DOL, Wage & Hour Devision has 6 criteria to determine the existence of an employment relationship. I've been all over their site looking for those 6 criteria & can't find anything. I've even skimmed over the whole written FLSA. Does anyone know where to find them?

We just got served on a lawsuit by a client (we're in human services) claiming he was an employee & we violated FLSA. I need those 6 criteria ASAP! Thanks so much.

marc · January 2005

I found seven criteria at the address below.

[url]http://www.dol.gov./esa/regs/compliance/whd/whdfs13.htm[/url]

Here are the 7, but additional text above and below on the web address will give you more information.

Hope it helps.

1) The extent to which the services rendered are an integral part of the principal's business.

2) The permanency of the relationship.

3) The amount of the alleged contractor's investment in facilities and equipment.

4) The nature and degree of control by the principal.

5) The alleged contractor's opportunities for profit and loss.

6) The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.

7) The degree of independent business organization and operation.

KathiHR · January 2005

Thank you so much! You're a much better researcher than I am!

pork1 · January 2005

KathiHR: Section 785.6 provides the specific ingredients of the Definition of Employ and payment for hours worked. 785.7, .8, .9, .10 and so give you all that you will need to understand the nature of the employee's complaint.

PORK

KathiHR · January 2005

Thanks...my frustration is that most information is for employee vs contractor. This is more basic than that...this is a client claiming to be an employee. We have to go back to the very beginning...what is an employee? Certainly not a client receiving services from the company!

I'll check out those sections. Thanks for the response.

Parabeaglex2 · January 2005

I think we need more information. Under what scenario could a client, receiving services from your firm, be misconstrued as an employee? Was he receiving any compensation from you in exchange for services performed? Did he kind of hang around the offices waiting for whatever service you provide and straighten up, sweep the floors, get people coffee, things like that? I'm trying to figure this out.

Don D · January 2005

I too am confused. A vendor or an independent contractor might claim to be an employee or an employee might claim to be a contractor; but, a client claiming to be either is an odd one to me. It's actually the IRS, not the DOL, that makes the distinction between contractor and employee and they publish a 'Twenty Factor Test' to determine employee status. I will fax that to the original questioner if she wants it, but not to others....to much trouble.

Where does the DOL define an "employee"?

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