When Julie Su’s first nomination to head the US Department of Labor (DOL) came up, we urged everyone to contact their legislators and voice their opposition because Ms. Su was the architect of California’s disastrous, anti-entrepreneurial law, AB5.

Ms. Su failed to get the votes needed in the US Senate to approve her nomination, and in July 2023 the Biden Administration removed her nomination but left her as Acting Secretary of Labor.

Fast forward to January 9, 2024 when Ms. Su nomination resurfaced along with the DOL’s final rule on Independent Contractors. The new rule outlines six factors with equal weight and importance as well as the catch all “totality of the circumstances.”

The factors are: 1) the degree of control the alleged employer has over the manner in which the work is performed; 2) the worker’s opportunity for profit or loss depending upon their managerial skill; 3) the worker’s investment in equipment or materials required for their task; 4) whether the service rendered requires a special skill: 5) the degree of permanence of the working relationship; and 6) the extent to which the service rendered is an integral part of the alleged employer’s business.

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