Back to the future: DOL issues ‘new’ independent contractor rule

On February 26, the Department of Labor (DOL) published its highly anticipated notice of proposed rulemaking that rescinds the current rule governing employee versus independent contractor classification under the Fair Labor Standards Act (FLSA). The 2026 proposed rule would also affect the Family and Medical Leave Act (FMLA) and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). Public comments on the proposed rule must be received by April 27, 2026. 

The DOL’s proposed rule would replace the 2024 rule issued by President Biden’s administration. The 2024 rule modified the 2021 rule that was issued by President Trump’s first administration, which prioritized two core factors in evaluating a worker’s classification: control over work and opportunity for profit or loss. If finalized, the proposed rule will permit employers to evaluate the nature of the working relationship using this more straightforward analysis. 

2021 rule 

The first Trump administration revised independent contractor regulations, de-emphasizing the economic realities test and its often confusing six and sometimes seven factors in analyzing whether workers were properly classified as independent contractors. The 2021 rule listed five factors to use in determining a worker’s status: