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Thanks for all the detail on independent contractor determinations, Stephanie. Let me address your "classification" and "transparency" points.

Please note that the proposal as it currently stands would demand a POSITION classification rather than a job classification. It seems that each worker would receive an analysis of their particular position showing how it was "classified" regarding employment status or FLSA status. Makes sense, because many jobs exist where some incumbents are found to be exempt but other incumbents with the same job in the same enterprise are non-exempt. Exemption is not title-specific but is determined on a case by case basis contingent on the actual individual worker situation.

"Transparency" only requires disclosure, sharing and documentation. Agreement by the worker (either contractor or employee) doesn't seem to be necessary. You just have to share their position classification with them and retain it for reference by the examination agent. Of course, if they are upset by the analysis, you may greet that investigator sooner.

This whole "wage theft" bandwagon is quite scary, because most employers have never prepared such necessary documentation to support ALL exemption or contractor status decisions. (That would seem to include your CEO and all NEOs, as well. I'd hate to see a CEO declared non-exempt due to failure to properly communicate and document the exemption.)

What is even worse is that individual States can create their own separate rules, too. Lots of companies are bound to get caught, despite sincere compliance efforts. This could mean job security for compensation professionals next year, however.

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