The Wage and Hour Division (WHD) of the Department of Labor (DOL) has issued Field Assistance Bulletin 2025-1 to guide its field staff on determining if a worker is an employee under the Fair Labor Standards Act (FLSA) — and therefore entitled to FLSA protections — and not an independent contractor.
The FAB instructs WHD field staff not to use the Biden administration’s 2024 final regulations for determining employee versus independent contractor status for FLSA purposes. Instead, the rules defined in Fact Sheet #13 (July 2008) and Opinion Letter FLSA2019-6 will be used for any matters for which an employer has not paid back wages or civil money penalties as of May 1, 2025.
While the WHD will not be actively enforcing the 2024 final regulations until the DOL takes further action, those final regulations are still legally binding for purposes of private litigation.
Toward the end of the first Trump administration, the DOL issued a more business-friendly independent contractor final rule in 2021, making it easier for employers to classify workers as independent contractors. The regulations focused on (1) the nature and degree of control over the work, and (2) the worker’s opportunity for profit or loss based on initiative or investment.
The 2024 final regulations issued under the Biden administration expanded the employee classification to broaden worker protections. They were intended to restore the multifactor analysis used by courts for decades, ensuring that all relevant factors are analyzed to determine whether a worker is an employee or an independent contractor. One effect of the 2024 final regulations issued during the Biden administration was that more gig workers could be classified as employees rather than independent contractors, increasing the number of workers potentially entitled to protections and benefits (e.g., minimum wage and overtime pay) typically afforded only to employees.
A number of legal challenges have been brought against the 2024 final regulations. The DOL is now reconsidering the 2024 final regulations, including the possibility of rescinding them altogether. It is likely that any guidance issued by the DOL under the Trump administration will once again broaden the circumstances under which a worker may be classified as an independent contractor rather than an employee.
