Determine employee vs. independent-contractor classification for cleaning crew members under federal wage law

Steps

1. Start from the U.S. Department of Labor's Fair Labor Standards Act guidance on worker classification at dol.gov/agencies/whd, and confirm which rule/analysis is currently controlling before applying it
2. Be aware that DOL's 2024 rule (effective March 2024) used a six-factor "totality of the circumstances" economic reality test; also be aware DOL proposed a new rule on February 26, 2026 to rescind that 2024 rule and replace it with a streamlined test centered on the employer's control and the worker's opportunity for profit or loss
3. Do not assume the outcome of the February 2026 proposal — its public comment period closed April 28, 2026, and as of any given date the rule may still be pending, finalized, or altered, so check dol.gov/agencies/whd/flsa/misclassification/2026rulemaking for the current status before advising a client
4. Separately confirm state-level classification tests (e.g., ABC tests used in several states), since state law can be more protective of worker status than the federal FLSA standard and controls in addition to it
5. Document the actual working relationship (control over schedule/methods, opportunity for profit/loss, investment in equipment, permanency, integral nature of the work) regardless of which federal test is in force, since these facts drive classification under nearly every version of the test
6. Consult employment counsel before reclassifying existing workers, given the overlapping and shifting federal/state legal landscape