DOL Issues Guidance on Worker Classification Enforcement Under FLSA
On May 1, the U.S. Department of Labor (DOL) issued a Field Assistance Bulletin (FAB) providing updated guidance to Wage and Hour Division (WHD) staff on how to determine whether a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). Worker classification is critical to both workers and workplaces because it determines whether individuals are entitled to key workplace protections such as minimum wage, overtime pay, and other benefits under the FLSA.
The new FAB directs WHD staff to base their classification analysis on longstanding principles outlined in Fact Sheet #13 (July 2008) and further supported by Opinion Letter FLSA2019-6, which addresses classification issues in the context of virtual marketplace and gig work. This guidance will apply to all matters where no payments — either to affected individuals or the DOL — for back wages or civil penalties have been made as of May 1, 2025.
This shift comes as the DOL reviews the 2024 Worker Classification Rule, which remains in effect but is currently being challenged in court. The department had previously indicated its intent to rescind the 2024 rule and potentially revert to the 2021 “core factors” test. While this review is ongoing, WHD investigators have been instructed not to use the 2024 rule in enforcement matters.
Importantly, the FAB does not change existing law, and the 2024 Worker Classification Rule remains in effect. Instead, it outlines how the department is choosing to allocate its enforcement resources during the review period.
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