The Labor Department’s ever-shifting standards for defining independent contractors, combined with US Supreme Court precedent weakening agency authority, will likely diminish the impact of new Trump rulemaking on gig worker litigation.

Last week, the DOL proposed rescinding a Biden-era rule that made it harder to classify workers as contractors not entitled to wage and other employment protections. If finalized, it would largely mark the return to a more business-friendly regulation from the first Trump administration, which itself overrode Obama-era guidance on the hotly contested issue.

“This proposed rule is just the next point in an endless game of regulatory ping pong,” said Richard Reibstein, a partner at Troutman Pepper Locke LLP.

DOL rulemaking can be considered in Fair Labor Standards Act litigation to prove or disprove that a worker was misclassified as an independent contractor. Over the past decade, drivers have filed these types of cases across the country against gig economy giants like Uber Technologies Inc. and Lyft Inc.

But the amount of weight courts give to new agency rules in those lawsuits remains to be seen following the high court’s landmark 2024 Loper Bright v. Raimondo decision, which overturned the requirement that judges defer to agency interpretations of ambiguous laws.

Weighing the Factors

Most federal appeals courts already have precedent applying some variation of an “economic realities test” to determine if a worker is an employee or a...

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