NELP Slams Trump DOL’s Independent Contractor Rule

On April 28, 2026, the National Employment Law Project submitted comments in opposition to the  Department of Labor’s (“Department” or “DOL”) Notice of Proposed Rulemaking (“NPRM”) regarding the standard for determining who is an employee entitled to rights and protections under the Fair Labor Standards Act (“FLSA”), the Family and Medical Leave Act (“FMLA”), and the Migrant and Seasonal Agricultural Worker Protection Act (“MSPA”) and who is an independent contractor excluded from those protections. As we explained in this fact sheet, an independent contractor is in business for themselves, whereas an employee works in someone else’s business.

Our comments explain that the proposed rule is contrary to the language in the FLSA, the FMLA, and the MSPA, as well as Supreme Court and circuit court precedent, which define and interpret employment expansively to ensure broad application of minimum labor standards and guard against employer exploitation of working people.

The proposed rule elevates and narrowly defines two “core” factors in ways that will broaden who is considered an independent contractor excluded from FLSA, FMLA, and MSPA protections. For example, one core factor looks at substantial control by the individual worker, as opposed to right to control by an employer, and fails to consider types of control that are particularly relevant in the modern economy. These types of control include control over economic conditions—such as a worker’s ability to set or meaningfully negotiate the rate for her services or a worker’s ability to determine the type and amount of capital investments for the business—that are directly relevant to whether an individual is operating an independent business. And, in the modern economy where employers can use technology to surveil, supervise, and manipulate workers, the NPRM misses the sophisticated yet nuanced ways that corporations set or control the material terms of the work. Our recent report explains the rise of “Bossware” technology—tools used to monitor, manage, and evaluate workers, including productivity trackers, webcam monitoring, wearable devices, and algorithms and apps used for wage-setting.

Much of this technology was pioneered by ride hail and delivery corporations that use digital labor platforms or “apps” to manage workers, even as they classify the workers as independent contractors. Some of these corporations use geolocation data to track workers’ progress on rides and deliveries, match workers with rides or deliveries, and customize the amount paid to workers for each ride or delivery. They also collect large quantities of data from workers and use this data to engage in “dynamic wage-setting”—fluctuating wages in real time based on demand, time of day, and other factors invisible to workers, which confuses workers about their true earnings and ultimately depresses wages for a sizeable portion of the workforce. None of this reserved or exercised control is acknowledged in the NPRM.

The proposed rule will enable independent contractor misclassification, a deeply entrenched practice that degrades wages and working conditions, particularly in fast- growing, low-paying, and labor violation—prone occupations and industries such as construction, delivery, janitorial work, home care, personal care, building services, and app-dispatched jobs.  It is no coincidence that Black, immigrant, and other workers of color—who face discrimination and occupational segregation that limit their job opportunities —are overrepresented in these occupations and industries.

Because employers who misclassify workers can pocket up to 30 percent of their labor costs, the practice makes it difficult for law-abiding employers to compete and fuels a race to the bottom.  And it starves federal and state governments of much-needed revenue that funds critical social insurance programs like unemployment insurance.

For these reasons, we urge the DOL to withdraw the proposed rule.