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Legislative Update from NCISS Legislative Committee and Lobbyit

concepts of Private Investigators as a whole. Another integral part were our incredible HTH sponsors who contributed so
many could join us in that support o our pro ession. The power o cohesiveness warms the heart. I you haven’t been to
Hit-The-Hill before, we encourage you to make plans now to attend in 2025. It is a life-changing experience.

As mentioned in the legislative advocacy, data privacy continues to be a hot topic with the surrounding subset of
protecting children; collection of data on social media platforms; the use of data information; artificial intelligence and
the impacts of algorithms influence of data access and safeguards, etc.

With the recent Department of Labor (DOL) Final Rule now in effect, increased concern about Independent Contractor
(IC) status has led NCISS to take several approaches to communicate our concerns to include: 1) a letter campaign to
Chairs and Ranking Members of key committees both in the Senate and the House; 2) NCISS also joined coalition under
S.J. 63 and H.J. 116 with other organizations to nulli y the O “new rule” setting en orcement standard O will use or
determining whether a worker is an employee or independent contractor under the Fair Labor Standards Act (FLSA); 3)
spoke directly with legislators at HTH. NCISS members utilize ICs around the country for litigation support and
understand the importance of ICs. NCISS will continue to monitor legislative concerns. For more information on
membership and specific bills we are monitoring please visit nciss.org.

Department of Labor Rule on Independent Contractor Status

Jim Zimmer, Legislative Committee – Chair (Investigations)

The epartment o abor ( O ) in October 2022 began taking public comment on a “proposed rule” regarding the
classifica on o independent contractors. Hundreds o industry groups sent their comments to the O . fter a yearlong
process, in October 2023, the O submitted the proposed rule to the Office o Management and Budget (OMB) in the
hite House. The OMB okayed the proposed rule and after a ew changes, O published the “Final Rule” in the Federal
Register on January 10, 2024. The rule was set to take e ect on March 11, 2024.

ithout getting too ar into the weeds o the 186-page Final Rule, a good summary was published by the employment
law firm Jackson ewis, which highlights the si “ conomic Reality” actors contained in the ruling:

1. Opportunity for profit or loss depending on managerial skill. This actor considers whether the worker has
opportuni es or profit or loss based on managerial skill (including ini a ve or business acumen or judgment) that
a ect the worker’s economic success or ailure in per orming the work.

2. Investments by the worker and the potential employer. This actor considers whether any investments by a worker
are capital or entrepreneurial in nature. osts to a worker o tools and equipment to per orm a specific job, costs o
workers’ labor, and costs that the poten al employer imposes unilaterally on the worker, or e ample, are not
evidence o capital or entrepreneurial investment and indicate employee status.

3. Degree of permanence of the work relationship. This actor weighs in avor o the worker being an employee when
the work rela onship is indefinite in dura on, con nuous, or e clusive o work or other employers. This actor
weighs in avor o the worker being an independent contractor when the work rela onship is definite in dura on,
non-e clusive, project based, or sporadic based on the worker being in business or themsel and marke ng their
services or labor to mul ple en es.

4. Nature and degree of control. This actor considers the poten al employer’s control, including reserved control, over
the per ormance o the work and the economic aspects o the working rela onship. Facts relevant to the poten al
employer’s control over the worker include whether the poten al employer sets the worker’s schedule, supervises
the per ormance o the work, or e plicitly limits the worker’s ability to work or others.

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