Employee or Independent Classification Under the FLSA

January 22, 2024 by Sandy Simpson

On January 10, 2024, the U.S. Department of Labor published a final rule, revising its guidance to employers and workers to help determine if a worker qualifies as an employee or an independent contractor (IC) under the Fair Labor Standards Act (FLSA).  The final ruling explains that the economic reality test is comprised of six-factors that are a guide to conduct the totality-of-the circumstances analysis to determine economic dependence. The new ruling takes effect March 11, 2024. To view the final ruling, click here 

Misclassification Issues 

Employers need to distinguish between employees and independent contractors when considering eligibility for workers’ compensation. Correctly distinguishing between employees and independent contractors is crucial for legal compliance, cost management, liability avoidance, and ensuring workers receive the appropriate benefits and protections. Misclassification can have significant financial and legal consequences for employers. 

What is the Economic Realities Test?  

The US Department of Labor uses an economic realities test to help employers comply with the law, reduce the risk of employee misclassification, and to help determine if a worker is classified as an independent contractor or as an employee. This test consists of six-factors that are all weighed against each other. All factors should be considered.  No single factor determines a worker’s status.  No one factor or combination of factors is more important than the other factors.  This test considers the totality of the circumstances of the working relationship. Below are the six (6) factors. 

  1. Opportunity for profit or loss depending on managerial skill, 
  2. Investments by the worker and the employer, 
  3. Permanence of the work relationship, 
  4. Nature and degree of control, 
  5. Whether the work performed is integral to the employer’s business  
  6. Skill and initiative 


About Medivest 

Since 1996 Medivest has been helping our clients navigate the complexities of MSP compliance.  We offer settlement solutions for workers’ compensation and liability settlements. Count on Medivest to help keep you up to date with the constant updates regarding Federal Register rulings, Medicare Secondary Payer legislation and changes related to CMS’s enforcement of the Medicare Secondary Payer.  For questions, feel free to reach out to a Medivest representative in your area by clicking here or call us direct at 877.725.2467. 



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