News publishers must understand how a writer is contracted following a new rule going into effect this month.
The Department of Labor (DOL) updated how employers are to consider if a worker is an independent contractor under the Fair Labor Standards Act starting March 11. The rule provides guidance on six factors instituted by the DOL for relationships between a worker and a potential employer. Those six factors are:
“The Department believes that this final rule will provide more consistent guidance to employers as they determine whether workers are economically dependent on the employer for work or are in business for themselves, as well as useful guidance to workers on whether they are correctly classified as employees or independent contractors,” the DOL said in its January 2024 ruling.
News publishers must review their practices before contracting with independent contractors, Camille Olson, partner at Seyfarth Shaw and a board member of America’s Newspapers, told E&P. “It’s important for media organizations and freelancers to look at the economic reality factors and to make sure that they comply with them as best as they can because it is going to be immediately under this rule,” Olson said.
Holly Lubart, vice president of government affairs at News/Media Alliance, a trade organization representing over 2,000 newspapers and magazines in the U.S. and Canada, told Editor & Publisher the ruling doesn’t define independent contractors and leaves ambiguous factors to be applied in determining the classification of workers. News publishers “will really continue to look at the factors that are in the rule as they make these business decisions,” Lubart said.
The ruling is being challenged as freelance writers and editors in Georgia have sued the DOL, alleging the rule makes it difficult for companies to treat workers as independent contractors and is illegal. Others believe the rule will make things difficult.
Freelance contractors see differences in take-home pay as staff employees obtain benefits, which makes classification important, Larry Goldbetter, president of the National Writers Union and Freelance Solidarity Project, said. “These standards about entrepreneurial ability for the vast majority of independent contractors [is] not a real factor,” Goldbetter said.
Keldy Ortiz is a New York-based writer and educator. He has written for publications locally and nationally. Photo credit: Michael Jackson
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