Per the notice below, the United States Department of Labor (USDOL) has issued revised guidance on its independent contractor misclassification enforcement.  Keep in mind that while federal guidance on this topic has fluctuated wildly over the past ten years, New York law has consistently remained much stricter and is what New York employers must follow.

We have published FAB No. 2025-1, FLSA Independent Contractor Misclassification Enforcement Guidance, which provides guidance to WHD field staff on the analysis to apply when determining employee or independent contractor status for purposes of enforcing the FLSA.  We also have published Opinion Letter FLSA2025-2, reinstating Opinion Letter FLSA2019-6, which addresses the virtual marketplace.  A number of lawsuits are pending in federal courts challenging the legality of the rule entitled, “Employee or Independent Contractor Classification Under the Fair Labor Standards Act, 89 Fed. Reg. 1638” (2024 Rule), which addresses the analysis for determining employee or independent contractor status under the FLSA.  The Department has taken the position in those lawsuits that it is reconsidering the 2024 Rule, including whether to rescind the regulation.  Consistent with the Department’s position on the 2024 Rule expressed in the above-referenced litigation, WHD will no longer apply the 2024 Rule’s analysis when determining employee versus independent contractor status in FLSA investigations.  We will enforce the FLSA in accordance with a previous version of Fact Sheet #13 from 2008 and Opinion Letter FLSA2019-6, which has been reinstated as Opinion Letter FLSA2025-2 – the first of the Administration.  The Department reserves the right to exercise its enforcement authority in specific matters explicitly deemed appropriate by the Administrator or designee.  This guidance does not change existing regulations but reflects the Department’s position while reviewing the 2024 Rule.  For additional FLSA guidance, please contact your local Wage and Hour Division office.