In a June 9, 2023 filing with the U.S. Court of Appeals for the Fifth Circuit, the U.S. Department of Labor (DOL) stated that its Independent Contractor (IC) Final Rule, addressing the standard for determining whether a worker is an employee or “independent contractor” under the Fair Labor Standards Act (FLSA), will not be ready for publication until October 2023, five months later than the Department previously had asserted.

A Notice of Proposed Rulemaking (NPRM) for the new IC rule was issued in October 2022, following a March 2022 decision by a Texas federal court that the DOL’s actions were unlawful in delaying and withdrawing an IC final rule issued during the waning days of the Trump administration (the “Trump IC Rule”). As a result of the court’s ruling, the Trump IC Rule went into effect, retroactive to its intended effective date in March 2021. The DOL appealed that ruling to the Fifth Circuit, but subsequently asked the Court of Appeals to stay proceedings while it went through the formal process of both withdrawing the Trump IC Rule and issuing a new IC Final Rule.

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.