Takeaways

• The Proposed Rule largely restores the 2021 independent contractor final rule issued during the first Trump Administration.
• The two “core” factors carrying the most weight are (1) the nature and degree of the worker’s control over the work and (2) the worker’s opportunity for profit and loss. If both point the same way, classification is usually clear.
• The 60-day public comment period runs through 04.28.26.

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Article

The Department of Labor’s (DOL) Wage and Hour Division (WHD) has issued a Proposed Rule defining “independent contractors” under the Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and Migrant and Seasonal Agricultural Worker Protection Act (MSPA).

The Proposed Rule restores the independent contractor test in the DOL’s 2021 Rule, issued in the waning days of the first Trump Administration, and formally rescinds and replaces the 2024 Rule issued by the Biden Administration. The 2024 Rule analyzed independent contractor status based on the “totality of the circumstances” using a six-factor test of independent contractor status where no factor was more heavily weighted. Under the now-revived 2021 Trump Administration Rule, two core factors (control over the work and opportunity for profit and loss) are given greater weight and generally are determinative in most cases, according to the Proposed Rule.

The “principal flaw of the 2024 Rule,” according to DOL, is “its failure to provide effective guidance on how...

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