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Legislative Update from NCISS Legislative Committee and Lobbyit

5. Extent to which the work performed is an integral part of the potential employer’s business. Th actor considers
whether the work per ormed is an integral part o the poten al employer’s business. This actor does not depend on
whether any individual worker in par cular is an integral part o the business, but rather whether the unc on they
per orm is an integral part o the business. This actor weighs in avor o the worker being an employee when the
work they per orm is cri cal, necessary, or central to the poten al employer’s principal business. This actor weighs
in avor o the worker being an independent contractor when the work they per orm is not cri cal, necessary, or
central to the poten al employer’s principal business.

6. Skill and initiative. This actor considers whether the worker uses specialized skills to per orm the work and whether
those skills contribute to business-like ini a ve. This actor indicates employee status where the worker does not use
specialized skills in per orming the work or where the worker is dependent on training rom the poten al employer
to per orm the work. here the worker brings specialized skills to the work rela onship, this act is not itsel
indica ve o independent contractor status because both employees and independent contractors may be skilled
workers. It is the worker’s use o those specialized skills in connec on with business-like ini a ve that indicates that
the worker is an independent contractor.

Im ct I v tig ti d cu ty P f
The N ISS egisla on ommittee is o the opinion that, while inves gators and security pro essionals who subcontract
th
work to each other may not be impacted by most o the Final Rule, there is concern regarding the 5 actor, which states:
“Extent to which the work performed is an integral part of the potential employer’s business.”
The language in the rule lacks clarity, and this could lead to unintended potentially disruptive consequences for
professions that have historically been reliant on independent contractor business models.
NCISS considers the subcontracting of work as a business to business (“B2B”) relationship. The DOL, and ultimately
the courts, may not agree.

None o us want to be a test case in li ga on filed by an overzealous labor law attorney.
The bottom line is that due to the ambiguity in the language, we just do not know at this point i and how the Final Rule
will a ect inves gators and security pro essionals.

Wh t N I d g?

N I B d A v u t f l ti O g DOL Rul
g l R v w Act -- j t luti th t d H u --H.J. R 116 d .J. R 63
Joint resolutions were introduced in both the Senate and House, to nullify the U.S. Department of Labor’s (“DOL”)
recently finalized regulation (the “new rule”)1 that sets the enforcement standard DOL will use for determining whether
a worker is an employee or an independent contractor under the Fair Labor Standards Act (“FLSA”).

This coalition letter in opposition to the DOL rule can be found on the Senate Committee on Health, Education, Labor
and Pensions page at https://www.help.senate.gov/ic-cra-letter-of-support_final-002pdf

In early March, the N ISS egisla ve ommittee proposed to the Board to join this coali on in support o the joint
resolu ons opposing the O Rule. In mid March, the N ISS Board unanimously passed in support o the joint
resolu ons.

The House and Senate resolutions in opposition to the DOL rule and NCISS supports can be found here:
https://www.congress.gov/bill/118th-congress/house-joint-resolution/116
https://www.congress.gov/bill/118th-congress/senate-joint-resolution/63

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