Tag: classification

  • WHD Issues Enforcement Guidance on Independent Contractor Classification – CUPA-HR

    WHD Issues Enforcement Guidance on Independent Contractor Classification – CUPA-HR

    by CUPA-HR | May 5, 2025

    On May 1, the Department of Labor’s Wage and Hour Division (WHD) issued a field assistance bulletin providing guidance on determining employee or independent contractor status under the Fair Labor Standards Act (FLSA) while DOL reviews the 2024 final rule, Employee or Independent Contractor Classification Under the Fair Labor Standards Act. The rule currently faces legal action in multiple federal court cases in which the Trump DOL has taken the position that it is reconsidering the 2024 rule, including whether to rescind the regulation.

    Simply put, the bulletin states that WHD “will no longer apply the 2024 Rule’s analysis when determining employee versus independent contractor status in FLSA investigations.” Instead, WHD will enforce the FLSA’s worker classification rules according to Fact Sheet #13, which was issued in 2008, and Opinion Letter FLSA2019-6, which was issued during President Trump’s first term.

    The opinion letter from Trump’s first term articulates WHD’s position on gig economy worker classification, ultimately finding such workers to be independent contractors because they work for the consumer and do not fit “any traditional employment paradigm” under the FLSA. The Biden administration previously withdrew the opinion letter, but it has now been reinstated as Opinion Letter FLSA2025-2.

    Fact Sheet #13 provides a broader perspective regarding the meaning of “employment relationship.” It specifically asserts that an employee under the FLSA is “one who, as a matter of economic reality, follows the usual path of an employee and is dependent on the business which he or she serves,” and that an employer-employee relationship under the law is tested by “economic reality.” It also lists seven factors that are considered significant by the Supreme Court in determining employee classification under the FLSA:

    • The extent to which the services rendered are an integral part of the principal’s business;
    • The permanency of the relationship;
    • The amount of the alleged contractor’s investment in facilities and equipment;
    • The nature and degree of control by the principal;
    • The alleged contractor’s opportunities for profit and loss;
    • The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor; and
    • The degree of independent business organization and operation.

    Looking Ahead

    The field assistance bulletin changes the enforcement priorities of WHD with respect to worker classification, though the Biden administration’s independent contractor rule remains in effect for the time being. Legal challenges against the Biden rule are ongoing, and the Trump administration has started reviewing the regulation, though there is no official process yet to rescind it.

    CUPA-HR continues to monitor for updates related to the independent contractor classification regulations and will keep members informed of future updates.



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  • Carnegie Foundation launches sustainability classification pilot

    Carnegie Foundation launches sustainability classification pilot

    The Carnegie Foundation for the Advancement of Teaching and the American Council on Education announced Thursday that they have launched a pilot of their new Sustainability Elective Classification, a designation that will recognize institutions of higher education that “embed sustainability and climate action into their core missions,” according to the announcement.

    The pilot program will include 21 colleges and universities from across the 50 states and Puerto Rico and will aim to refine the criteria for the classification while working to guarantee that it is attainable to institutions of all sizes and types. The classification is expected to consider “institutional efforts across curriculum, research, operations, community engagement, and workforce development, with an emphasis on preparing students for careers in sustainability fields.”

    “The Elective Classification for Sustainability recognizes how institutions of higher education are essential to the future of American innovation and progress, within and beyond their classrooms,” Timothy F. C. Knowles, president of the Carnegie Foundation, said in the announcement. “These pilot institutions are helping to forge the way.”

    The Sustainability Elective Classification is scheduled to launch in early 2026. The Carnegie Foundation and ACE are also looking for a university or institution to serve as the classification’s administrative and operational host.

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  • Congress Introduces Legislation on Employee Classification of Student-Athletes – CUPA-HR

    Congress Introduces Legislation on Employee Classification of Student-Athletes – CUPA-HR

    by CUPA-HR | June 18, 2024

    On June 13, the House Education and Workforce Committee voted to advance H.R. 8534, the Protecting Student Athletes’ Economic Freedom Act. The bill would prohibit student-athletes from being classified as employees under federal and state labor laws and regulations due to their participation in intercollegiate athletics.

    The bill was introduced on May 23 by Rep. Bob Good (R-VA) and 10 House Republicans. If enacted, the bill would prohibit student-athletes from being classified as employees at institutions of higher education, athletic conferences or athletic associations (such as the NCAA). In effect, the legislation would prohibit student-athletes from being classified as employees under federal labor laws, such as the Fair Labor Standards Act (FLSA) and National Labor Relations Act (NLRA), as well as state laws and regulations determining employment classification.

    Throughout the Biden administration’s first term, the National Labor Relations Board (NLRB) has issued significant guidance and decisions with respect to the classification of student-athletes as employees. In September 2021, the NLRB’s general counsel issued a memorandum asserting the agency’s position that student-athletes are considered employees under the NLRA. The memorandum was followed by an NLRB complaint filed against the University of Southern California, the Pac-12 Conference and the NCAA for allegedly misclassifying USC’s men’s football and men’s and women’s basketball players as student-athletes rather than employees. Additionally, in March 2024, the Dartmouth College men’s basketball team voted in favor of joining the Service Employees International Union, after a regional NLRB director determined that players on the team are employees under the NLRA using the board’s general counsel memorandum.

    The bill passed out of committee by a partisan vote of 23-16, only gaining support from Republicans on the committee. The bill now awaits a full House vote, where Republicans can pass the bill with a simple majority. The fate of the bill is more uncertain in the Senate, as it is unlikely that it will gain enough support from Democrats to bypass the 60-vote filibuster. CUPA-HR will keep members apprised of any updates relating to this bill and employee classification of student-athletes generally.



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