On February 26, the U.S. Department of Labor announced a proposed rule that will rescind an IEC-opposed 2024 Employee or Independent Contractor Classification Under the Fair Labor Standards Act final rule and replace it with a commonsense proposal similar to the IEC-supported 2021 final rule.
Construction industry stakeholders—who depend on legitimate independent contractors to provide specialized skills, entrepreneurial opportunities, and stability during fluctuations of work common to the industry—have eagerly awaited a new rulemaking following years of litigation and confusing changes to the federal independent contracting standard.
Most recently, on May 1, 2025, the DOL announced that it will pause enforcement of the Biden DOL’s 2024 Employee or Independent Contractor Classification Under the Fair Labor Standards Act final rule in current enforcement matters while the agency reviews the rule and evaluates related litigation.
Associated Builders and Contractors, its Southeast Texas chapter, the Coalition for Workforce Innovation, and five other organizations challenged the 2024 final rule in federal court, which is currently pending.
Once the DOL issues its proposed rule in the Federal Register, the public will be able to comment on proposed changes, which the DOL will consider before issuing a final rule, likely in late 2026.
In the interim, the DOL’s Field Assistance Bulletin notes that, effective May 1, 2025, the DOL will enforce the FLSA in accordance with Fact Sheet #13 (from July 2008, not March 2024) and as further informed by the reinstated Opinion Letter FLSA2019-6, which addresses classification in the context of virtual marketplace platforms.
IEC members engaged in relationships with independent contractors should be mindful of the dozens of different standards for independent contractor status under other employment laws, including those at the state and sometimes local level, and remain vigilant in complying with those laws while the DOL continues its independent contractor rulemaking.
IEC members and industry stakeholders are encouraged to submit comments on the proposal on or before April 28, 2026. In the coming weeks, IEC will be providing additional analysis and talking points to IEC members to facilitate a clear and useful final rule. Members can also read more on the independent contractor rule in this Washington Post editorial.
Stakeholders Petition NLRB for Independent Contractor Rulemaking
IEC is a member of the Coalition for a Democratic Workplace, which February 11, 2026, filed a petition for rulemaking with the National Labor Relations Board urging the Board to set a clear independent contractor standard under the National Labor Relations Act.
“Given [the current] lack of clarity, instability, and open clash with the courts, both the purposes of the Act and the legitimacy of the Board are best served by the Board establishing a regulation setting forth the framework for determining independent contractor status by way of APA notice-and-comment rulemaking in line with its decision in SuperShuttle,” according to the petition, which also requests that the Board reverse the Biden administration’s decision in Atlanta Opera.
“For too long, policy around the independent contractor standard under the NLRA has swung wildly with each change in administration, creating unnecessary confusion and threatening the livelihoods of entrepreneurs across the country. The regulated community needs policy stability to plan for the future and thrive,” said CDW chair Kristen Swearingen. “That stability can only be achieved with a well-reasoned rulemaking that follows Congressional intent and can withstand judicial scrutiny.”
“Independent contractors play an integral role in nearly every sector of the economy, and the coalition of organizations on this petition for rulemaking demonstrates the broad array of industries concerned about the worker classification standard under the NLRA,” said Independent Work Coalition Chair Katie Farrell. “Federal labor policy should preserve the rights of individuals and businesses who wish to enter into legitimate contracts. The Board should set a clear independent contractor standard that supports entrepreneurs, provides stability for the regulated community, and protects against bona fide misclassification.”
On December 18, 2025, the U.S. Senate approved the IEC-supported nominations of NLRB General Counsel Crystal Carey and NLRB Members James Murphy and Scott Mayer.
With the confirmation of the three nominees, the NLRB now has a pro-business general counsel to set the NLRB’s agenda and follow the rule of law, and it has a Board quorum for the first time in nearly a year.
Lacking a functional quorum for nearly all of 2025, the NLRB failed to address any of the numerous Biden-era Board policies that tilted the labor-management landscape in favor of labor unions.
While the Board makes its way through its current case backlog, a potential rulemaking on independent contractor status provides a way for the Board to make new policy while it waits for a third Republican member, who will be needed to overturn existing Board law as a result of long-standing precedent established by the Board.
IEC and CDW continue to urge the White House to nominate another Board nominee, who likely faces a contentious confirmation process through the Senate Health, Education, Labor, and Pensions Committee and final confirmation vote on the Senate floor.
IEC members are encouraged to send a letter to the Trump administration asking for a new NLRB nominee via this IEC grassroots action campaign.