ABC March 12 submitted comments in response to a Department of Labor (DOL) information request regarding a proposed worker classification survey.  According to DOL, the proposed survey would “collect information about employment experiences and workers’ knowledge of basic employment laws and rules so as to better understand employees’ experience with worker misclassification.”

In its comments, ABC expressed several concerns with DOL’s proposed survey and noted that the sampling method and size of the survey questionnaire were inadequate for the purposes of obtaining the information the agency aims to collect.  In addition, ABC argued that DOL has yet to sufficiently establish the necessity for conducting such a survey, and pointed out that the agency’s rationale erred with respect to both the lack of disclosure requirements and the actual causes of misclassification. Finally, ABC expressed frustration with DOL’s window for public comment (60 days), stating it was an unreasonable timeframe in which to review the proposal. 

ABC’s concerns over the proposed survey also were related to the significant impact its findings could have on the direction of future DOL policy. For several years, the Obama administration has expressed an interest in promulgating a rulemaking referred to as “Right to Know,” in which employers would be required to provide written analyses to workers classified as independent contractors, as well as any employees deemed to be exempt from overtime under the Fair Labor Standards Act (FLSA). ABC is concerned that such a complex rulemaking would significantly burden employers, serve merely as an enforcement tool, and increase the number of FLSA lawsuits concerning exemption and misclassification issues.

During the summer of 2010, DOL took its first meaningful steps toward the development of the Right to Know rulemaking; however, by January 2012, the rule had been inexplicably downgraded to "Long-Term Action," where it currently resides. Because the agency could resurrect this rulemaking at any time using the data gathered through the DOL survey, ABC will continue to closely monitor the proposal.