Proposed DOL Rule Would Simplify Independent Contractor Status – A Little Bit

I was in Italy last week and visited Vatican City. Passport control at the Rome airport was annoyingly slow, but getting in and out of Vatican City – a sovereign nation – was surprisingly easy. Below is a photo of border control at the Vatican.

Navigating the border between independent contractor and employee status is usually more Rome airport than Vatican City, but a proposed new regulation from the Department of Labor (DOL) would make it a bit easier to support independent contractor status under the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA).

The proposed rule would adopt a five-factor “economic reality” test, consistent with the test adopted during the first Trump administration. The defining feature of this test is that it highlights two core factors. If these two factors are met, the worker would almost always be an independent contractor under the FLSA and FMLA.