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Washington Update

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DOL’s Wage and Hour Division is proposing to conduct a survey to collect information from employees on whether they are classified as an employee, independent contractor, or some other status, and whether they understand the implications of their classification status. This proposed survey is a first step in a larger initiative that DOL calls “Right to Know.”

The Right to Know initiative is described by DOL as a way to “foster more openness and transparency in demonstrating employers’ compliance” with recordkeeping requirements of the Fair Labor Standards Act. It would require HR professionals to disclose to workers how the employer determined the employee’s classification and how their pay is computed.

SHRM’s comments to the agency are critical of the fact that DOL’s notice informing the public of the survey and inviting comment did not include the supporting statement justifying the need for the survey, the sampling methodology document or the survey instrument itself—almost 125 pages of materials essential for the public to review before it can provide meaningful comments on the survey. SHRM also points out flaws with the proposed employee sample size, the lack of a pre-testing component, and imprecise questions that are likely to yield invalid answers. In addition, SHRM does not believe DOL has sufficiently established the necessity for conducting a survey of employees when information on worker classification is available elsewhere, including DOL’s own files.

SHRM is currently working with other stakeholders to meet with agency officials and have further discussions on the need for and the structure of the survey.

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