Skip to main content
Top Button
From the NFL to the DOL: Where <i>Monday Night Football</i> Meets the Biden Administration From the NFL to the DOL: Where <i>Monday Night Football</i> Meets the Biden Administration

From the NFL to the DOL: Where Monday Night Football Meets the Biden Administration

If you are a fan of the Los Angeles Chargers football team, you may have been nervous as a recent Monday Night Football game between the Broncos and the Chargers entered overtime. While you may have been concerned about the outcome of the game, you probably weren’t worried about whether the game would be over in time for you to make it to your side hustle at the NFL Network. That was Chase Daniel’s worry.

Daniel is the backup quarterback for the Chargers. He is also a post-game commentator for the NFL Network, following every NFL Monday Night Football game. [1] As a pro football fan, I’m intrigued by an NFL player who also works the night shift. As an employment lawyer, I want to know how Daniel is getting paid for his gig work. And as of a couple of weeks ago, the U.S. Department of Labor (DOL) might also be interested in this question.

On October 13, 2022, the DOL released its proposed regulations on worker classification under the Fair Labor Standards Act (FLSA). The purpose of the new rules is ostensibly to correct perceived abuses by companies of the “independent contractor” status. These newly proposed regulations will clearly make it more difficult to classify workers as independent contractors rather than regular employees of the business. Because I have some trouble turning off my brain, I had to wonder whether Chase Daniel is working as an “employee” or “independent contractor” for the NFL Network, and if the latter, whether his new gig will survive these new regulations?

The prior independent contractor regulations, promulgated by the Trump Administration, were considered much more employer-friendly. In contrast, the newly proposed rules endorse a return to what the DOL describes as a 40-year history of using the regulations to protect employees from abuse as a result of misclassification. 

One of the biggest differences between the Trump Administration rules and the Biden Administration rules is that none of the factors that will now be considered by the DOL will have any predetermined significance—each factor must be considered in light of the entire relationship between the worker and the business (whatever that means). 

The six factors the DOL proposes that now be considered to determine whether someone is truly an independent contractor include the following: 1) the nature and degree of the worker’s control over the work being performed; 2) the worker’s opportunity for profit or loss in the arrangement; 3) investments by the worker and the company; 4) the degree of permanence of the working relationship; 5) the extent to which the work performed is an integral part of the employer’s business; and 6) the degree of skill and initiative exhibited by the worker. The new regulations are intended to guide the analysis of whether the “economic realities of the working relationship” reveal the person to be economically dependent on the company for work, or if instead, the person is in business for himself or herself based on a “totality-of-the-circumstances.” Interestingly, the proposed rules also state that “additional factors may be relevant” in the analysis, but such other factors are not fully identified.

In explaining its new approach to analyzing the issues, the DOL acknowledged several other analytical alternatives that it had considered but rejected. The DOL made specific reference to what is known as the “ABC test,” under which all workers are presumed to be “employees” of the company unless the employer can demonstrate three specific factors that all show the person is truly an independent contractor. In other words, the DOL would apparently like you to know that it could have been much worse, from an employer’s perspective. That said, the DOL still estimates that the new regulations could impact more than 22 million supposedly misclassified contractors/employees. Nevertheless, the DOL insists that the new proposed rules are very consistent with pre-Trump Administration rules and will not trigger a large number of misclassification enforcement actions by the agency.

For good or bad, Chase Daniel (and the rest of us) will not know the final outcome of these proposed rules for a while. Originally, comments on the proposed regulations were due by November 28, 2022. Based on immediate responses from the business world, the DOL extended the comment period by 15 days to December 13, 2022. Those comments must be considered by the DOL before final implementation, so we should not expect the final rules to go into effect until mid to late 2023. To close where we started, Chase Daniel’s season with the L.A. Chargers, and his part-time gig with the NFL Network, will be long over before we have an answer on his employment status.

If you have questions about this topic, please contact Paul Sinclair or any member of our Workplace Solutions team at Ice Miller. 

[1] To read the full story of Chase Daniel’s long Monday night, click this story from

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
View Full Site View Mobile Optimized