The Department of Labor’s Wage and Hour Division (WHD) is seeking public comments on the agency’s proposal to collect information “about employment experiences and workers’ knowledge of basic employment laws and rules so as to better understand employees’ experience with worker misclassification.” According to a notice published in the January 11, 2013 edition of the Federal Register, the proposed Worker Classification Survey is intended to “provide critical information to Department policymakers on whether workers have knowledge of their employment classification and whether they understand the implications of their classification status.” A copy of the proposal can be obtained by contacting Karen Livingston, the WHD’s director of the Division of Strategic Planning and Performance, at (202) 693-0023.

 The WHD notes that this is the first time the agency has attempted to survey workers based on their knowledge of worker misclassification, and that federal law does not currently require employers to notify their workers of their employment status, the basis for their status determinations, or pay. One of the WHD’s long-term goals is to draft a rule that would amend an employer’s recordkeeping requirements under the Fair Labor Standards Act (FLSA) to provide employees with greater information about their employment status. According to information on this “Right-to-Know” proposal filed with the Office of Management and Budget (OMB), the purpose of this rule would be to:

enhance the transparency and disclosure to workers of their status as the employer's employee or some other status, such as an independent contractor, and if an employee, how their pay is computed. The Department also proposes to clarify that the mandatory manual preparation of "homeworker" handbooks applies only to employers of employees performing homework in the restricted industries.

Since this is a long-term rule-making proposition, it is unclear if the agency’s new proposed information collection request related to employee misclassification is a means of testing the necessity of a new rule.

The types of comments the WHD are seeking would address the necessity, burdensomeness, and clarity of the information that would be collected through this proposed worker classification survey. Comments on the proposal must be received on or before March 12, 2013, and contain the agency name and document number 2013-00389 or any other identifier. Comments may be submitted by email to: WHDPRAComments@dol.gov, or by mail or hand-delivery to: Division of Regulations, Legislation, and Interpretation, Wage and Hour, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, NW., Washington, DC 20210.

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