Labor & Employment Law Daily Wrap Up, DOL NEWS—Wage and Hour Division to stop applying 2024 independent contractor analysis, (May 2, 2025)

By Brandi O. Brown, J.D.

It will now enforce the FLSA in accordance with a 2008 fact sheet and a 2019 opinion letter.

Yesterday, the Department of Labor announced that it has issued a field assistance bulletin providing guidance to regional administrators, district directors, and WHD staff on what analysis to apply when determining employee or independent contractor status for purposes of enforcing the FLSA. Essentially, the department is turning away from the “gig worker” rule and foreshadowing plans to rescind it.

2008 and 2019 principles. DOL explains that while it reviews the 2024 final rule, which it notes currently is being challenged in federal court, agency investigators have been told not to apply the 2024 rule’s analysis in current enforcement matters. Rather, WHD should follow the principles outlined in Fact Sheet #13 (as it existed in 2008 and not as it was after being revised in 2024), further informed by Opinion Letter FLSA2019-6, which it has reinstated.

The 2008 version of Fact Sheet #13 has been included in the bulletin. The opinion letter addresses classification in the context of virtual marketplace platforms, i.e., online and/or smartphone-based referral services connecting service providers with end-market consumers to provide services such as transportation, delivery, shopping, moving, cleaning, plumbing, painting, and household services.

While the guidance does not change existing regulations, DOL acknowledges, it “reflects how the department is allocating enforcement resources during the review of the 2024 rule.” The field assistance bulletin also “supersedes any prior or conflicting guidance provided to Wage and Hour Division staff on enforcement related to independent contractor misclassification.” However, the department states that it may still exercise enforcement authority in individual cases deemed appropriate by the Wage and Hour Administrator or a designee.

Applicability. The bulletin states that WHD will follow the new guideline “with respect to any matters for which no payment has been made, directly to individuals or to DOL, for back wages and/or civil money penalties as of May 1, 2025.”

“Until further action is taken,” the bulletin adds, “the 2024 Rule remains in effect for purposes of private litigation and nothing in this FAB changes the rights of employees or responsibilities of employers under the FLSA, see Fact Sheet #13 (March 2024).”

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