Recently the Department of Labor (DOL) promulgated a new rule governing employee/independent contractor status for the Fair Labor Standards Act, which governs minimum wage and overtime pay.  In the Notice of Proposed Rulemaking, the DOL recognized and discussed a submission from the St. John’s Labor Relations and Employment Society (LRELS).

The LRELS submission was calling attention to the problems of unpaid internships.  Both Professor Miriam Cherry and Professor David Marshall advised LRELS in their submission.

Upon the release of the regulations, Professor Cherry commented about their impact to Bloomberg news in an article by Chris Marr, Worker Status Rule Garners Trucking, Builder Ire More Than Uber, published Jan. 10, 2024:

While this rule change probably won’t bring a sudden reclassification of Uber drivers, the ride-share and delivery-app industries aren’t totally off the hook here, said Miriam A. Cherry, a professor at St. John’s University School of Law. Gig companies’ public statements saying the rule won’t change their business model could partly be designed to inspire confidence in their shareholders and preserve stock values, she added.

Some tweaks in the Labor Department’s interpretation of the six factors nudge the analysis in favor of finding drivers to be employees, she said. In particular, restoring the question of whether a person’s work is an integral part of a company’s operations favors employee status for drivers, whereas the Trump-era rule treated that as a less-significant factor.

“I don’t think this necessarily resolves it, but it certainly is a major push towards acknowledgment of employee status,” Cherry said. “It’s a step toward recognition of that.”