May 8, 2026
The U.S. Department of Labor ‘s proposed changes to its independent contractor classification test could result in fewer workers being able to avail themselves of Family and Medical Leave Act and PUMP Act protections, as well as add to compliance challenges posed by a patchwork of state laws, experts say.
The Labor Department in late April closed the book on a 60-day comment period for its proposed rule to reset the agency’s test for determining employee status under the Fair Labor Standards Act, the Family and Medical Leave Act, and the Migrant and Seasonal Agricultural Worker Protection Act.
The rule proposes replacing a standard for determining whether a worker is an employee or independent contractor that was adopted during the Biden administration with a five-prong economic reality test, which tracks the framework that was in place during the first Trump administration.
Although disputes about worker classification often arise in the wage-hour context, attorneys said the updated standard could have wide-ranging ripple effects, including to whether workers can avail themselves of leave under the FMLA or nursing accommodations under the three-year-old Providing Urgent Maternal Protections for Nursing Mothers, or PUMP, Act.
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D. Michael Hancock, of counsel at plaintiff-side Cohen Milstein Sellers & Toll PLLC and a former assistant administrator for the DOL’s Wage and Hour Division, said the proposed rule “opens the door to reclassifying some employees as independent contractors,” and it “certainly is going to create a lot of confusion among both employees and employers about who is protected.”
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DOL Test, State Laws May Not Align
Hancock of Cohen Milstein noted that more than two dozen states have adopted variations of the ABC test for determining whether someone is an employee or contractor. That framework, Hancock said, is “much clearer, much more definitive, [and] much more certain in its application.”
In those states where more robust legal protections are in place, Hancock said the impact of the federal regulation will likely be more limited. He added that courts evaluating classification disputes aren’t bound by the Labor Department’s test, he said.
“It might be meaningful for some courts, but it certainly isn’t binding for any court,” Hancock said. “Having said that, I think that it’s going to create a direct conflict with many of the courts who’ve spoken on this matter in the past, and so it’s going to be an interesting evolution as courts try to determine what, if anything, this regulation is going to mean as applied to specific cases.”
Read DOL Contractor Reset May Limit Leave, Lactation Laws’ Reach.