Trump Administration DOL Issues First Substantive Guidance On Independent Contractors

The Wage and Hour Division of the Department of Labor (DOL) issued a Field Assistance Bulletin (FAB) on Friday, July 13, 2018, titled "Determining Whether Nurse or Caregiver Registries Are Employers of the Caregiver."¹ Although this FAB focuses on the caregiver registry industry, it provides the new administration's first substantive guidance on independent contractor classification.

Last June, the DOL withdrew its 2015 Administrative Interpretation (AI) on independent contracting but did not replace the AI with other guidance, stating only that removal of the AI "does not change the legal responsibilities of employers under the Fair Labor Standards Act."² The 2015 AI on independent contracting, in a radical shift of direction for the DOL and departure from IRS standards, asserted that lack of control over the worker was not a determining factor for finding independent contractor status.³ The DOL concluded in the 2015 AI that "most workers are employees under