On October 13, 2022, the U.S. Department of Labor published a Notice of Proposed Rulemaking (NPRM) to revise the Department’s guidance on how to determine who is an employee or independent contractor under the Fair Labor Standards Act (FLSA). The NPRM proposes to rescind a prior rule, Independent Contractor Status Under the Fair Labor Standards Act (2021 IC Rule), that was published on January 7, 2021 and replace it with an analysis for determining employee or independent contractor status that is more consistent with the FLSA as interpreted by longstanding judicial precedent. The Department believes that its proposed rule would reduce the risk that employees are misclassified as independent contractors, while providing added certainty for businesses that engage (or wish to engage) with individuals who are in business for themselves.

The initial deadline for interested parties to submit comments on the NPRM was November 28, 2022. On October 26, 2022, the Department published a notice in the Federal Register, extending the deadline to submit comments by 15 days. The Department encourages interested parties to submit comments on this proposal by December 13, 2022 (the new deadline). The full text of the NPRM, as well as information on the deadline for submitting comments and the procedures for submitting comments, can be found at Federalregister.gov. The NPRM’s comment period closes at 11:59 p.m. ET on December 13, 2022.

Anyone who submits a comment (including duplicate comments) should understand and expect that the comment, including any personal information provided, will become a matter of public record and will be posted without change to www.regulations.gov. The Wage and Hour Division posts comments gathered and submitted by a third-party organization as a group under a single document ID number on www.regulations.gov, including any personal information provided.

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