The U.S. Department of Labor has proposed a new independent contractor rule that would guide courts, companies, and workers in their determinations of who must be paid as an employee...

Seyfarth Synopsis: The U.S. Department of Labor has proposed a new independent contractor rule that would guide courts, companies, and workers in their determinations of who must be paid as an employee and who can be treated as an independent contractor under the FLSA and two other statutes.

After much anticipation, the Department of Labor (DOL) has published a Proposed Rule defining independent contractors as opposed to employees under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) (the "Proposed Rule"). As expected, the Proposed Rule largely mirrors the DOL's earlier 2021 Rule. The Proposed Rule would replace the Biden administration's 2024 rule and is intended to provide clarity as to the definition of who is an independent contractor under the FLSA, FMLA, and MSPA. Notably, the Proposed Rule:

• Embraces the same "core factor" approach used in the 2021 Rule, recognizing the significant weight courts give to "the right to control the manner and means by which services are performed" factor and "the opportunity-for-profit-or-loss" factor;
• Uses the same three non-exhaustive factors as "additional guideposts," including: the amount of skill required for the work, the degree of permanence of...

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