Evolving Strategies for Avoiding Costly Workplace Misclassifications Under the FLSA

Classifications Absent a Bright Line Yes/No Test, Enforcement Priorities, Mitigating Misclassification Litigation Risks

A live 90-minute CLE video webinar with interactive Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Wednesday, January 11, 2023

1:00pm-2:30pm EST, 10:00am-11:30am PST

Early Registration Discount Deadline, Friday, December 16, 2022

or call 1-800-926-7926

This CLE webinar will guide employment counsel on strategies for avoiding workplace misclassifications under the FLSA and applicable state laws. The panel will discuss the latest trends in improper classification of workers, the current administration's enforcement priorities, clarification of gray areas, and best practices for mitigating employment misclassification litigation risks.


Employers and employees have been governed for decades by the FLSA and its numerous revisions and amendments in an ever-changing workplace. Under the FLSA, misclassifications of exempt vs. non-exempt employees and classifying workers as independent contractors can lead to significant consequences, including the recovery of unpaid wages, overtime, benefit entitlements, penalties, attorneys' fees, and double or even treble damages in some jurisdictions. Further, misclassification often leads to costly audits of the company's overall wage and hour classifications under federal and state law.

In view of growing workplace enforcement activities under the current administration, employment counsel must craft effective strategies for dealing with proper classifications in the workplace. This can be a daunting task in the absence of a bright line yes/no test or resolution, especially classifications of independent contractors. The test by the DOL under the FLSA is not the same one used by the IRS, and many states have their own classifications as well.

Under the previous administration's regulation, a five-factor "economic reality" test was issued by the DOL when determining whether an individual is an independent contractor. That regulation designated two core factors--the nature and degree of control and the worker's opportunity for profit or loss--to be given the greatest weight from the other three factors in the independent contractor analysis. The trend by the current administration is a return to the "totality of the circumstances" analysis traditionally used by courts, which emphasizes a six-factor analysis with no one or two factors being determinative. To avoid potential claims, employment counsel must be familiar with the nuances of all tests used to determine a worker’s proper status.

Listen as our authoritative panel of employment attorneys discusses the consequences of improperly classifying workers under the FLSA and state laws. The panel will also examine the current administration's enforcement priorities and offer strategies and best practices for mitigating employment litigation risks, including drafting effective arbitration provisions with class action waivers.



  1. Workplace misclassifications under the FLSA and state laws
    1. Exempt vs. non-exempt employees
    2. Employees as independent contractors
  2. Trends, clarifications, and enforcement priorities
  3. Best practices for mitigating employment litigation risks


The panel will review these and other issues:

  • What are the key workplace misclassification considerations under the FLSA and state laws?
  • What are some effective strategies for dealing with proper employee classifications amid increased DOL scrutiny?
  • What steps should employment counsel take to ensure compliance and avoid substantial DOL penalties?


Reibstein, Richard
Richard Reibstein

Locke Lord

Mr. Reibstein began his legal career with the U.S. Department of Labor and the National Labor Relations Board in...  |  Read More

Spillman, Michele
Michele C. Spillman

Of Counsel
Phillips Murrah

With a background in both commercial litigation and labor and employment law, Ms. Spillman offers clients comprehensive...  |  Read More

Attend on January 11

Early Discount (through 12/16/22)

Cannot Attend January 11?

Early Discount (through 12/16/22)

You may pre-order a recording to listen at your convenience. Recordings are available 48 hours after the webinar. Strafford will process CLE credit for one person on each recording. All formats include course handouts.

To find out which recorded format will provide the best CLE option, select your state:

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