Sen. Brown Takes Aim at Independent Contractors

Employment Law

Sen. Sherrod Brown (D-OH) introduced legislation this week to authorize the Treasury Department to issue guidance clarifying how workers should be classified for tax purposes, while excluding certain occupations where skilled workers are viewed as more likely to be engaged as independent contractors by choice.  The Fair Playing Field Act (S. 2252) would lift a 37-year ban on Treasury Department regulations establishing workers' employment tax status.  The bill is consistent with the Administration's views on independent contractors as the so-called "gig economy" continues to garner attention, raising questions regarding whether workers are properly classified.  In July, the Wage and Hour Division of the Department of Labor issued guidance on classification under the Fair Labor Standards Act indicating that "most workers" should be classified as employees rather than independent contractors.  The Fair Playing Field Act would exempt certain skilled workers, including engineers, computer programmers, and systems analysts.  An aide for Brown said of the exemption: "These are areas where highly compensated employees are typically treated as independent contractors.  The relationship is by choice and does not have a negative impact on workers.  By carving them out we can focus on issues like construction and transportation, where misclassification is endemic."