Tag: WHD

  • 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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  • WHD Begins Enforcement of Remedies Provided Under PUMP for Nursing Mothers Act – CUPA-HR

    WHD Begins Enforcement of Remedies Provided Under PUMP for Nursing Mothers Act – CUPA-HR

    by CUPA-HR | May 1, 2023

    On April 28, the Department of Labor’s Wage and Hour Division (WHD) will begin enforcing remedies for employer violations of an employee’s right to reasonable break time and space to pump breast milk under the Fair Labor Standards Act (FLSA). These remedies were codified into law under the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act, which was included in the Consolidated Appropriations Act of 2023 — year-end legislation to fund the federal government.

    As a reminder, the PUMP for Nursing Mothers Act amends the FLSA to expand access to breastfeeding accommodations in the workplace for lactating employees and builds on existing protections in the 2010 Break Time for Nursing Mothers Provision by broadening breastfeeding accommodations and workplace protections. In the new law, protections are expanded to include salaried employees exempt from overtime pay requirements under the FLSA as well as other categories of employees currently exempt from such protections, such as teachers, nurses and farmworkers. It also clarifies that break time provided under this bill is considered compensable hours worked so long as the worker is not completely relieved of duty during such breaks, and it ensures remedies for nursing mothers for employer violations of the bill.

    According to a WHD fact sheet on FLSA protections to pump breast milk at work, there will be several legal or equitable remedies employers will be liable for if they are found to have violated an employee’s right to reasonable time and space to pump in the workplace. The document states that remedies may include “employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages, compensatory damages and make-whole relief, such as economic losses that resulted from violations, and punitive damages where appropriate.” The fact sheet also clarifies that the remedies listed above will be available regardless of whether an employee experienced retaliation.

    In addition to the fact sheet, the WHD has issued several resources on the PUMP for Nursing Mothers Act’s provisions since its enactment. On February 9, the WHD issued Field Assistance Bulletin No. 2023-1, “Telework Under the Fair Labor Standards Act and Family and Medical Leave Act.” This bulletin provides guidance for WHD field staff on how to apply protections under the FLSA that provide reasonable break time for nursing employees to express milk while teleworking, among other clarifications. The bulletin explicitly refers to the passage of the PUMP for Nursing Mothers Act and its expanded coverage to more employees. Additionally, on March 16, the WHD held a webinar to provide resources and tools to assist employees who wish to continue breastfeeding after returning to work and to help employers understand their responsibilities under the Act.

    For more information on the PUMP for Nursing Mothers Act and FLSA protections to pump at work, the WHD has provided a resource website with general guidance, additional resources and the webinar on the PUMP for Nursing Mothers Act. CUPA-HR will keep members apprised of any updates to this law and others regarding FLSA protections for pregnant and nursing workers.



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