In May 2021, the Department of Labor withdrew the “Independent Contractor Status Under the Fair Labor Standards Act” final rule. According to the Society for Human Resource Management, “The DOL has traditionally analyzed a number of factors to consider whether a worker is an independent contractor or employee and looked at ‘the totality of the circumstances.’ The withdrawn rule would have applied a more limited economic-reality test.”

The Wall Street Journal explained the rule would have made it “more difficult for a gig worker, such as an Uber or DoorDash driver, to be counted as an employee under federal law.” The WSJ also said the DOL will likely “continue to use its previous regulation to enforce the Fair Labor Standards Act, which was enacted in 1938” and that the rule withdrawal doesn’t actually change gig worker classification. It quoted a DOL spokesperson as saying that there were no new independent contractor rules on the horizon.

The DOL said that it “believes that the Rule is inconsistent with the FLSA’s text and purpose, and would have a confusing and disruptive effect on workers and businesses alike due to its departure from longstanding judicial precedent.” Employers and workers alike should keep an eye on DOL actions and any future court cases and take guidance from qualified professionals. They should also be aware of state laws. California has an especially strict independent contractor test: Workers are not independent contractors unless the hiring entity satisfies all three of the following conditions:

  • The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.
  • The worker performs work that is outside the usual course of the hiring entity’s business.
  • The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

Illinois, Massachusetts, and New Jersey have similarly strict tests, according to the SHRM, which said the Biden administration favors an eventual federal rule similar to California’s.


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