Labor Department Finalizes Changes to Independent Contractor Test
The U.S. Department of Labor (DOL) on Wednesday published a final rule changing its policy for determining independent contractor status under the Fair Labor Standard Act. Importantly, this test will not impact tests by the IRS or other federal agencies.
Unlike the current policy, which was issued under the previous administration and focuses on two of the five factors used to determine worker status, this final rule restores a “totality-of-the-circumstances” analysis, setting forth six non-weighted factors to consider when determining whether a worker is an employee or an independent contractor.
The test’s ultimate inquiry is whether, as a matter of economic reality, the worker is economically dependent on the employer (and thus an employee) or in business for themselves (and thus an independent contractor).
The six factors to consider under the test:
- Is the work performed an integral part of the employer’s business?
- Does the worker’s managerial skill affect the worker’s opportunity for profit or less?
- Is the relationship between the worker and employer permanent or indefinite?
- What is the nature and degree of the employer’s control?
- Does the worker use specialized skills to perform the work, and do those skills contribute to business-like initiative?
- Are investments by a worker capital or entrepreneurial in nature?
According to the rule, DOL will also consider additional factors that “may be relevant in determining whether the worker is an employee or independent contractor” to be considered in the question of worker status, but DOL did not provide examples of what those factors could be.
The changes in this final rule will go into effect on March 11, 2024.
NAHB filed comments when these changes were first proposed in 2022, noting that the new policy threatens to impact many industries that rely on the subcontractor business model, including residential construction. NAHB will continue to provide updates on forthcoming actions with the rulemaking.
Latest from NAHBNow
May 23, 2025
Volatile Spring Selling Season ContinuesSales of newly built, single-family homes in April increased 10.9% to a 743,000 seasonally adjusted annual rate from a downwardly revised March number, according to newly released data from the U.S. Department of Housing and Urban Development and the U.S. Census Bureau. The pace of new home sales in April was up 3.3% compared to a year earlier.
May 22, 2025
NAHB Members Cite Impact of Tariff Uncertainty on Home BuildingTariff uncertainty from the Trump administration continues to impact home builders across the country, as builders prepare for potential price hikes and supply chain issues. NAHB members have been sharing the impact that these tariffs are having with media outlets across the United States.
Latest Economic News
May 22, 2025
Existing Home Sales Fall in AprilDespite the brief retreat in mortgage rates and increased supply, existing home sales dropped to 7-month low in April, according to the National Association of Realtors (NAR). This unexpected decline suggests buyers’ activity continues to be constrained by economic uncertainty and ongoing affordability challenges even with improved market conditions.
May 22, 2025
Income Growth Helps Mute Existing Affordability ConstraintsDespite solid income gains and lower home prices, Americans still continue to face major housing affordability challenges, according to the latest data from the National Association of Home Builders (NAHB)/Wells Fargo Cost of Housing Index (CHI).
May 21, 2025
Gains for Multifamily Missing Middle over Last YearThe missing middle construction sector includes development of medium-density housing, such as townhouses, duplexes and other small multifamily properties.