Help Shape What’s Next for NAHB
 
Take the Industry Pulse Check. Learn more
 

Department of Labor Releases Final Independent Contractor Rule

Labor
Published

The U.S. Department of Labor (DOL) announced a final rule clarifying the definition of employee under the Fair Labor Standards Act (FLSA) as it relates to independent contractors. While the rule will make it easier for businesses to classify workers as independent contractors, it is still unclear if it will ultimately be implemented by the incoming Biden administration.

The final rule would provide more clarity to employers in determining whether a worker is an independent contractor or an employee under the FLSA. NAHB has called on DOL to take steps to provide greater clarity to employers and workers in light of the often conflicting federal tests that exist, and has urged further action to harmonize the definition of “employee” across all relevant statutes.

NAHB is pleased that at our request the new rule includes specific examples of how it would relate to the construction industry.

Though the rule is intended to take effect 60 days after it is published in the Federal Register, the DOL under the new Biden administration could delay the effective date and support legal challenges to keep the rule from being implemented.

The DOL’s final independent contractor rule as issued today still relies on an economic realities test to determine employment status, but adopts a more streamlined five-factor approach.

Two “core factors” are given greater weight in making this determination -- the nature and degree of the employer’s control over the work, and the worker’s opportunity for profit or loss based on personal initiative and/or investment. These factors help determine if a worker is economically dependent on someone else’s business or is in business for himself or herself.

The three other factors that may serve as additional guideposts in the analysis are the amount of skill required for the work; the degree of permanence of the working relationship between the worker and the potential employer; and whether the work is part of an integrated unit of production.

The final rule will be published in the Federal Register on Jan. 7 and be effective on March 8, 2021.

For more information contact NAHB’s David Jaffe at 800-368-5242 x8317 or Alexis Moch at x8407.

Subscribe to NAHBNow

Log in or create account to subscribe to notifications of new posts.

Log in to subscribe

Latest from NAHBNow

Safety

May 11, 2026

Mental Health is a Jobsite Issue

There has long been a stigma around discussing mental health issues in the construction industry. NAHB and partners have been working to erase that stigma and give members access to resources focused on mental well-being.

Advocacy

May 08, 2026

NAHB's Monthly Update Features the Industry Pulse Check and Lumber Insights

The talking points this month feature the Industry Pulse Check and insights on Canadian lumber duties.

View all

Latest Economic News

Economics

May 07, 2026

Multifamily Developer Confidence Holds Steady in First Quarter

The Multifamily Production Index (MPI) had a reading of 44, unchanged year-over-year, while the Multifamily Occupancy Index (MOI) had a reading of 69, dropping 13 points year-over-year.

Economics

May 06, 2026

State-Level Employment Situation: March 2026

State labor market conditions showed modest improvement in March, with job gains concentrated in several large states and the construction sector continuing to expand. However, employment declines across a number of states and mixed unemployment rate trends point to uneven momentum across regional economies.

Economics

May 06, 2026

Slight Rise for Open Construction Jobs in March

The number of open positions in the construction sector edged higher in March, per the Bureau of Labor Statistics Job Openings and Labor Turnover Survey (JOLTS). The current level of open jobs is down measurably from three years ago due to declines in construction activity, particularly in housing.