Understanding the New 2024 DOL Independent Contractor Rule

Photo of Amy Cann
Amy M. Cann
Of Counsel, Litigation Department
Published: New Hampshire Business Review
January 26, 2024

On January 10, 2024, the United States Department of Labor (US DOL) published its new final rule regarding the classification of independent contractors under the Fair Labor Standards Act (FLSA). The US DOL believes its new guidance, which takes effect on March 11, 2024, better matches the courts’ interpretation of how the FLSA applies to independent contractor classifications.

Background on the FLSA

For background, Congress enacted the FLSA in 1938 to create worker protections related to minimum wage, overtime pay, child labor, and recordkeeping requirements. If an organization hires independent contractors instead of employees, no employment laws, including the FLSA, apply. This makes hiring independent contractors desirable for organizations because there are no wage and hour concerns, such as overtime pay, no workers’ compensation insurance, no employment taxes, and no benefit costs, and there is greater overall flexibility in the relationship.

However, it is not easy to circumvent the employment laws. The independent contractor classification is narrow under the FLSA interpretation. The DOL is the agency charged with enforcing the FLSA. Employers found violating the FLSA’s employee vs. independent contractor classification rule will likely be required to pay back wages, including overtime, reimbursement for out-of-pocket expenses, penalties, and possibly liquidated damages and other criminal and civil penalties. Misclassification is a common and often expensive mistake.

New Final Rule Breakdown

To classify a worker as a contractor, organizations must understand the new US DOL guidance. The US DOL will now examine the totality-of-the-circumstances economic-reality test with six factors. No one factor has more weight than another. The factors are:

(1)   Opportunity for profit or loss depending on managerial skill: This factor refers to whether there is potential for economic success or failure based on the individual’s business acumen, judgment, and/or initiative.

(2)   Investments by the worker and the potential employer: This factor is based on whether the worker is investing money in capital (i.e., equipment) or is entrepreneurial and supports a business function like expanding their market base like a potential employer would be doing.

(3)   Degree of permanence of the work relationship: This factor refers to whether the working relationship is definite in duration, non-exclusive, project-based, or sporadic.

(4)    Nature and degree of control: This factor is based on how much control an individual has over the performance of their work, their schedule, and the economics of the relationship.

(5)   Extent to which the work performed is an integral part of the potential employer’s business: This factor refers to whether the function performed is critical, necessary, or central to the business – or an independent function, service, product, etc.

(6)    Skill and initiative: This factor is based on whether the worker brings specialized skills to the relationship or obtains them from the potential employer.

The new US DOL guidance also explains that the rule will consider additional factors that may be relevant if such factors indicate whether the worker is in business for themselves.

New Rule Replaces the Trump-Era Standard

Specifically, the 2024 rule replaces the 2021 rule established under the Trump Administration, which often conflicted with established case law and the Department’s prior guidance on independent contractor status. In particular, the 2021 rule gives extra weight to two core factors: (1) nature and degree of control, and (2) opportunity for profit or loss, even if other factors did not support an independent contractor conclusion. The 2021 rule also prohibits considering whether the work performed is central or important to the potential employer’s business.

Independent Contractors and Other Agencies’ Tests

In addition to the US DOL, other agencies like the Internal Revenue Service (IRS), National Labor Relations Board (NLRB), and state-level Department of Labor and Unemployment agencies have their own independent contractor tests. For example, the New Hampshire Department of Labor requires all of its seven criteria to be met for an individual to be considered an independent contractor. The so-called “ABC test” is another common classification type used in federal and state law and agencies. For example, New Hampshire Employment Security uses the ABC Test. The FLSA does not preempt any other laws that protect workers, so organizations must comply with all applicable federal, state, and local laws and ensure that they meet whichever standard provides workers with the greatest protection.

In Summary

The best advice for organizations is to consider employee status as the default classification when hiring. Organizations should only use the independent contractor classification after carefully analyzing the factors discussed across all applicable federal and state agency guidance. It is also important to know that an individual cannot legally waive their employee status and choose to be classified as an independent contractor. The employer will be the one who ultimately pays for the misclassification, not the misclassified employee. In light of this new rule, now is a good time for businesses to review their independent contractor relationships to ensure they comply and are not at risk for a misclassification determination.