In her February 2010 presentation of the 2011 budget request for the U.S. Department of Labor, Secretary Hilda L. Solis included funding to hire 90 new investigators for the department's Wage and Hour Division. These increases will allow the Labor Department's worker protection agencies to "vigorously protect wages and working conditions of 135 million workers in more than 7.3 million workplaces."
Secretary Solis' presentation also includes plans for budget increases for a Misclassification Initiative to address misclassification with 100 additional enforcement personnel and grants to increase states' incentives to address the problem. Misclassification of employees as "independent contractors" deprives the employee of benefits and protections such as overtime and unemployment benefits.
Continuing the message on April 1, 2010, Secretary Solis unveiled the U.S. Department of Labor's "We Can Help" campaign. This campaign is to be led by the department's Wage and Hour Division and will focus on employees in industries such as construction, janitorial work, hotel/motel services, food services and home health care.
Courts have used what is called the Economic Realities Test to determine whether individuals are properly classified as independent contractors under the Fair Labor Standards Act. Under this test, the Court considers the following factors: (1) the degree of control which the alleged employer exerts over the worker; (2) the worker's opportunity for profit or loss; (3) the worker's investment in the business; (4) the permanence of the working relationship; (5) the degree of skill required to perform the work; and (6) the extent to which the work is an integral part of the alleged employer's business. None of the factors alone is dispositive; the Court assesses the totality of the circumstances. See, Lewis v. ASAP Land Express, 554 F. Supp. 2d 1217 (D. Kan., 2008).
Secretary Hilda L. Solis presents US Department of Labor budget request for fiscal year 2011