On October 13, 2022, the U.S. Department of Labor (DOL) published a Notice of Proposed Rulemaking (NPRM), seeking to revise the standard for determining whether a worker is an employee or “independent contractor” under the Fair Labor Standards Act (FLSA). The NPRM proposes to withdraw the current regulations, issued during the last days of the previous administration, and essentially replace them with the standards that existed prior to those regulations.

In the NPRM, the DOL originally set a deadline of November 28, 2022, for the public to submit comments regarding the proposed regulations. Now, in response to complaints from several business groups and others that the 45-day comment period was too short to meaningfully analyze the proposed regulations, the DOL has extended the comment deadline by 15 days, until December 13, 2022. The lack of a “meaningful” review period was an issue that contributed to a federal court’s invalidation of the Department’s first effort to withdraw the current regulations.

For a full discussion of the NPRM and the history of the independent contractor analysis under the FLSA, see our article, What’s Old is New Again: Labor Department Flip-Flops on Independent Contractor Analysis.

Jackson Lewis encourages affected companies to comment on the NPRM and its attorneys are available to help evaluate the impact of the proposed regulations on an employer’s business operations.

We will continue to keep you updated on further developments. In the meantime, if you have any questions about the NPRM, the independent contractor analysis, or any other wage and hour issue, please consult the Jackson Lewis attorney(s) with whom you regularly work.