Direct Sourcing

(Author Note: This article intends to inform about a critical government ruling taking effect in a few weeks as well as encourage discussion on social media. See a post by Christopher Dwyer, managing director of the Future of Work Exchange, this week on LinkedIn to share your opinions and feedback.)

Enterprises of all sizes rely on contingent workers as a critical segment of their workforce and operational support. However, a final ruling on the 2021 IC Rule issued by the U.S. Department of Labor (DOL) has the potential to upend the gig economy when it goes into effect on March 11. The ruling brings into focus how organizations classify an employee versus a contractual worker under the Fair Labor Standards Act. The final ruling presents stricter guidelines on independent contractor classification. The ramifications on labor costs, workforce policy, and talent strategy could be significant.

A Ruling Focused on Guidance

The purpose of the DOL’s ruling is twofold: 1) institute guidelines for how to classify workers as independent contractors and 2) prevent employee misclassification — a serious problem that the DOL says “impacts workers’ rights to minimum wage and overtime pay, facilitates wage theft, allows some employers to undercut their law-abiding competition and hurts the economy at-large.”

According to Acting Secretary of Labor, Julie Su, “Misclassifying employees as independent contractors is a serious issue that deprives workers of basic rights and protections,” she explained. “This rule will help protect workers, especially those facing the greatest risk of exploitation, by making sure they are classified properly and that they receive the wages they’ve earned.”

Separately, the DOL’s final ruling rescinds the Trump era 2021 Independent Contractor Rule that the “department believes is not consistent with the law and longstanding judicial precedent.”

The DOL published the following to describe and explain its final ruling: This final rule rescinds the Independent Contractor Status Under the Fair Labor Standards Act rule (2021 IC Rule), that was published on January 7, 2021, and replaces it with an analysis for determining employee or independent contractor status that is more consistent with the FLSA as interpreted by longstanding judicial precedent.

The misclassification of employees as independent contractors may deny workers minimum wage, overtime pay, and other protections. This final rule will reduce the risk that employees are misclassified as independent contractors while providing a consistent approach for businesses that engage with individuals who are in business for themselves. 

Since the issuance of the final ruling last month (January 9), its reception has trended toward the negative. One of the biggest concerns is the lack of clarity in the ruling itself.

Resounding Opposition Follows Final Ruling

While the ruling is designed to offer protections (e.g., overtime pay, benefits, etc.) for employees misclassified as contingent workers, it brings possible drawbacks to both workers and organizations. Reaction to the ruling was met with criticism and concern by several industry representatives.

Marc Freedman, U.S. Chamber of Commerce Vice President of Workplace Policy — Link:

“The Department of Labor’s new regulation redefining when someone is an employee or an independent contractor is clearly biased towards declaring most independent contractors as employees, a move that will decrease flexibility and opportunity and result in lost earning opportunities for millions of Americans,” he said.

“It threatens the flexibility of individuals to work when and how they want and could have significant negative impacts on our economy. Making matters worse, the rule is completely unnecessary, as the Department continues to report success in cracking down on bad actors that are misclassifying workers. The U.S. Chamber will carefully evaluate our options going forward, including litigation,” Freedman added.

Emily Dickens, Society for Human Resource Management (SHRM) Chief of Staff, Head of Public Affairs and Corporate Secretary — Link:

“The DOL’s action … ‘underscores the importance of clear and consistent regulations, fostering diverse business relationships essential for the demands of the modern economy. HR plays a vital role in ensuring proper worker classification,’ she said.

‘However, the ongoing shifts in regulatory guidance impose compliance burdens and legal uncertainties on HR professionals and business executives.’”

Timothy Taylor, Holland & Knight Labor, Employment and Benefits Attorney (in an article for Law360) — Link:

Taylor’s expressed concerns about the challenges the rule poses for both businesses and independent contractors: “There are no real surprises, but the rule is just going to remain very challenging and very problematic for businesses and for workers who want to retain their independent status across the board,” he said.

Chris Spear, American Trucking Associations’ President and CEO — Link:

“I can think of nothing more un-American than for the government to extinguish the freedom of individuals to choose work arrangements that suit their needs and fulfill their ambitions. More than 350,000 truckers choose to work as independent contractors because of the economic opportunity it creates and the flexibility it provides, enabling them to run their own business and choose their own hours and routes. That freedom of choice has been an enormous source of empowerment for women, minorities, and immigrants pursuing the American Dream,” Spear said.

It is clear based on opinions from some of the largest industry groups that we haven’t heard the last about the DOL’s final ruling.

Uncertainties Ahead for Enterprises and the FOW

The true impact of the final ruling on workers, enterprises, and the Future of Work at large, has yet to be seen. However, here are a few closing thoughts on how things could change moving forward.

Labor costs. Should organizations find themselves classifying more workers as employees (who were previously independent contractors), expect a steep rise in labor costs for those employers. Purportedly, to prevent misclassifications and system abuse, there are stricter guidelines around classifying workers as independent contractors.

Workforce planning. With nearly 50% of an enterprise’s total workforce comprised of contingent labor, the final ruling could have significant implications on talent allocation. With fewer contingent workers, how does that affect talent acquisition and total talent management strategies? Having the right talent at the right time could take on an entirely new meaning.

Direct sourcing strategy. A global talent pool to attract and hire contingent workers is a major component of direct sourcing. Enterprises with a focus on skills-based hiring have boundaryless options when it comes to contingent labor. However, a reduction in contingent labor coupled with stricter remote work policies suddenly shrinks the potential labor pool drastically.

Worker flexibility. The benefit of work-life balance for an employee is often viewed as an acceptable tradeoff to higher compensation. The same holds true for contingent workers. The scheduling flexibility and client freedom are just a couple of benefits afforded to contingent workers. Under the final ruling, however, those advantages could disappear under an “employee” classification. For example, a noncompete clause as an employee could affect the livelihood of a contingent worker.

FOW paradigm. A Future of Work principle is about being future ready by sourcing talent to execute today as well as tomorrow. Contingent workers are the backbone of that principle. A government ruling that could impact a large percentage of nearly 50% of the workforce is worth taking a closer look. Enterprises hire contingent workers for many strategic positions. It would serve them well to find a happy medium around labor protections for this critical workforce segment.

The Future of Work Exchange will continue to cover this issue and others like it. We encourage you to provide your opinions and feedback. Follow our managing director and thought leader Christopher Dwyer on LinkedIn to be part of the discussion.