U.S. Department of Labor
Fair Labor Standards Act Advisor
Independent Contractors
On January 10, 2024, the U.S. Department of Labor published a final rule, Employee or Independent Contractor Classification Under the Fair Labor Standards Act, effective March 11, 2024, revising the Department’s guidance on how to analyze who is an employee or independent contractor under the Fair Labor Standards Act (FLSA). This final rule rescinds the Independent Contractor Status Under the Fair Labor Standards Act rule (2021 IC Rule, 86 FR 1168), that was published on January 7, 2021. This guidance will be updated.
The Supreme Court has said that there is no definition that solves all problems relating to the employer-employee relationship under the Fair Labor Standards Act (FLSA). The Court has also said that determination of the relation cannot be based on isolated factors or upon a single characteristic, but depends upon the circumstances of the whole activity. The goal of the analysis is to determine the underlying economic reality of the situation and whether the individual is economically dependent on the supposed employer. In general, an employee, as distinguished from an independent contractor who is engaged in a business of his own, is one who "follows the usual path of an employee" and is dependent on the business that he serves. The factors that the Supreme Court has considered significant, although no single one is regarded as controlling are:
- The extent to which the worker's services are an integral part of the employer's
business (examples: Does the worker play an integral role in the business by performing
the primary type of work that the employer performs for his customers or clients? Does the
worker perform a discrete job that is one part of the business' overall process of
production? Does the worker supervise any of the company's employees?);
- The permanency of the relationship (example: How long has the worker worked for the same
company?);
- The amount of the worker's investment in facilities and equipment (examples: Is the
worker reimbursed for any purchases or materials, supplies, etc? Does the worker use his
or her own tools or equipment?);
- The nature and degree of control by the principal (examples: Who decides on what hours
to be worked? Who is responsible for quality control? Does the worker work for any other
company(s)? Who sets the pay rate?);
- The worker's opportunities for profit and loss (examples: Did the worker make any
investments such as insurance or bonding? Can the worker earn a profit by performing the
job more efficiently or exercising managerial skill or suffer a loss of capital
investment?); and
- The level of skill required in performing the job and the amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent enterprise (examples: Does the worker perform routine tasks requiring little training? Does the worker advertise independently via yellow pages, business cards, etc.? Does the worker have a separate business site?).
For information about trainees (including School-to-Work programs) and volunteers or to find out whether your employees are covered by the FLSA, click on the underlined text.
Remember that some employees are exempt from various provisions of the law. To explore the broad categories of these exemptions or to obtain further information about the FLSA, click on the underlined text.
For more information, please contact your local Wage and Hour District Office.
