On Jan. 1, 2024, the Biden administration’s Department of Labor (DOL) issued its final regulation on who is an employee versus who is an independent contractor, Part 795 – Employee or Independent Contractor Classification under the Fair Labor Standards Act, 89 F.R. 1741, No. 7 (Jan. 10, 2024). The regulation rescinds the Trump administration rule because, according to the administration, it emphasized two factors—employer control over how the work is done and opportunity to engage in entrepreneurial activity—in a manner unsupported by the agency’s traditional multifactor view and case law, and was inconsistent with the DOL’s emphasis on “economic dependence” as a principal guidepost.

The regulation brings back the traditional, flexible multifactor approach but leaves some important questions unanswered.