DOL's Independent Contractor Rule Set For March

On March 11, 2024, the Department of Labor's (DOL) new rule on the standard for determining who is an employee and who is an independent contractor under the Fair Labor Standards Act (FLSA) is set to take effect.

The rule –  originally proposed in October 2022 – features a six-factor test “based on the economic reality of the worker and potential employer relationship,” the agency said, and affirms that a worker is not an independent contractor if they are economically dependent on an employer for work.

To analyze employee or independent contractor status under the FLSA, the six factors considered are:

• Opportunity for profit or loss depending on managerial skill. Facts that can be relevant include whether the worker determines or can meaningfully negotiate the charge or pay for the work provided, whether the worker accepts or declines jobs or chooses the order and/or time in which the jobs are performed, whether the worker engages in marketing, advertising or