DOL Issues Proposed Rule on Independent Contractor Classification Under FLSA; Comments Due December 13

Published October 26, 2022

The DOL Wage and Hour Division has extended the deadline for submitting written comments on the Notice of Proposed Rulemaking, Employee or Independent Contractor Classification Under the Fair Labor Standards Act.

Comments are due December 13, 2022.

(Updated October 25, 2022)


The U.S. Department of Labor (DOL) issued a notice of proposed rulemaking to modify Wage and Hour Division regulations to revise its analysis for determining employee or independent contractor classification under the Fair Labor Standards Act (FLSA) to be more consistent with judicial precedent and FLSA’s text and purpose. The proposed rule would provide guidance on classifying workers and seeks to combat employee misclassification.

The proposed rule would:
  • Align DOL's approach with courts’ FLSA interpretation and the economic reality test;
  • Restore the multifactor, totality-of-the-circumstances analysis to determine whether a worker is an employee or an independent contractor under the FLSA;
  • Ensure that all factors are analyzed without assigning a predetermined weight to a particular factor or set of factors;
  • Revert to the longstanding interpretation of the economic reality factors. These factors include the investment, control and opportunity for profit or loss factors. The integral factor, which considers whether the work is integral to the employer’s business, is also included;
  • Assist with the proper classification of employees and independent contractors under the FLSA; and
  • Rescind the 2021 Independent Contractor Rule.

Comments are due November 28, 2022.