Morgan Lewis Submits Comments to DOL Regarding Proposed National Independent Contractor Misclassification Survey

Our comments to the Department of Labor (DOL)—submitted on March 12, 2013, and available here in full—detail our concerns with its proposed National Independent Contractor Misclassification Survey and suggest the agency consider a number of alternative approaches. As discussed in our February 20, 2013, LawFlash, "DOL Proposes Survey on Independent Contractor Misclassification," the DOL proposes surveying company representatives and more than 10,000 workers to address perceived independent contractor misclassification—and to inform its decisions concerning potential federal "right to know" regulations that would require companies to provide detailed classification information to all workers. In our comments, we:

• Request that the DOL reconsider its survey proposal in light of an apparent underestimation of the burden and cost it will impose on taxpayers and respondents, the significant duplication between this survey and other ongoing government studies, and the unreliability of having untrained interviewers purport to make contractor/employee classification determinations.
• Propose a number of ways the DOL can modify the process and content of the survey to make it more fair and balanced so the results are more likely to be representative of the national workforce. Those suggestions include enhancing the transparency of the participant selection process, fairly apprising participants of the true purpose of the survey and risks of participation, and revising many questions that are leading and suggestive of misclassification.

We expect that the DOL will consider the comments received from employers, firms, and industry organizations over the next few months. Should the DOL ultimately decide to proceed with the study, the designated survey contractor will begin contacting selected worker and employer participants in August 2013.

The following Morgan Lewis attorneys are available to help employers prepare for any contact related to the survey and for the possibility that their contractors ultimately may be approached by the survey's commissioners:

Irvine
Barbara J. Miller

Los Angeles
Jonathan S. Battenfeld

Miami
Anne Marie Estevez

New York
Christopher A. Parlo

Philadelphia
Michael J. Puma

Princeton
Thomas A. Linthorst 

Washington, D.C.
Timothy P. Lynch