The independent contractor test under the Fair Labor Standards Act (FLSA), which determines whether an individual is classified as an employee or an independent contractor, has started to resemble a ping-pong match...
The independent contractor test under the Fair Labor Standards Act (FLSA), which determines whether an individual is classified as an employee or an independent contractor, has started to resemble a ping-pong match — over the last five years the test has changed three times — leaving employers uncertain whether they may face steep penalties for employee misclassification. On Friday, February 26, 2026, the Department of Labor (DOL) issued a proposed rule that largely reverts back to the 2021 business-friendly, five-part “economic reality” test to determine independent contractor status under FLSA, the Family and Medical Leave Act (FMLA), and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) (the proposed rule).
The proposed rule seeks to replace President Biden’s 2024 “totality of the circumstances” rule. The back and forth (summarized below) has left businesses grasping for certainty in classifying workers. Revisions to worker classification criteria can significantly impact franchisors and manufacturers, particularly concerning the categorization of franchisees and distributors. The balance between exercising control over brand standards and allowing operational independence...
"Here is a follow-up video capturing a classic moment from the Xi-Trump summit: While Xi Jinping was away using the restroom, Trump casually glanced through a small notebook Xi had left on the tab...