According to the New World Encyclopedia, examples of “suffering” include pain, illness, disability, hunger, poverty, grief, hatred, frustration, heartbreak, guilt, humiliation, anxiety, loneliness, self-pity, and death.

According to federal wage and hour law, “suffer” means employment.

Ouch. Happy Monday.

One of the many problems with the Fair Labor Standards Act (FLSA) — the federal law that sets minimum wage and overtime standards — is that it’s archaic, outdated, old. It was passed in 1938.  Before Hitler invaded Poland.  Before the first Captain America comic book. Even before the invention of the Slinky.

In 1938, Mick Jagger wasn’t even born yet. (But Betty White was 16.)

The language used in the FLSA reflects a different era. In the definitions section of the Act, “employ” includes “to suffer or permit to work.” What exactly does that mean? At the time it was written, what did Congress intend for it to mean? And what does it mean now, in the modern economy, especially when trying to determine whether a worker is an employee or an independent contractor?

According to the FLSA regulations, if “the employer knows or has reason to believe that [the individual] is continuing to work,” then the time is working time. It’s employment. Even work that is “not requested” is work time if the employer permitted the work to be done.

When asking the question, Who Is My Employee?, this broad definition presents a challenge. As the Supreme Court has recognized, this definition is broader than the ordinary “common law” definition of employment, which looks at the extent of control the employer exercises (or has the right to exercise) over the worker. That’s the Right to Control Test, which is discussed in more detail here.

Because the definition of “employ” is different under the FLSA than under most other employment laws, the test for determining Who Is My Employee? is different too.

The FLSA uses an Economic Realities Test to determine whether a worker is an employee (as compared to an independent contractor).

The Economic Realities Test is expressed slightly differently by different federal courts but, in general, the test asks whether the worker is economically reliant on the potential employer to earn a living. If economically reliant, the worker is likely an employee. If the worker has other sources of income or is business for himself/herself, the worker is more likely an independent contractor, not an employee.

The Economic Realities Test is described in more detail here.

So that’s how the federal courts interpret the “suffer or permit to work” language in the FLSA. But to keep things interesting, California’s wage and hour laws use the same “suffer or permit” language in its state law definition of “employ,” but California interprets that phrase differently and imposes a different test. Same standard, different test.

As we will discuss in Thursday’s post, California’s alternative interpretation of that same phrase can lead to very different results when evaluating whether someone is an employee or independent contractor.

It’s California’s definition — more than the federal definition — that is more likely to cause pain, illness, disability, hunger, poverty, grief, hatred, frustration, heartbreak, guilt, humiliation, anxiety, loneliness, or self-pity. To the Golden State’s credit, though, probably not death. Good job, California.

© 2018 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.