Ahead of an April 28, 2026 deadline, Americans for Prosperity Foundation (AFPF) submitted a public comment supporting the U.S. Department of Labor’s (DOL) proposed rule clarifying who qualifies as an independent contractor or employee under the Fair Labor Standards Act and other DOL jurisdiction.
AFPF’s Michael Pepson and Austen Bannan applauded the Wage and Hour Division for rescinding the Biden-era 2024 rule, which relied on a vague, open-ended balancing test that undermined due process, discouraged entrepreneurship, and threatened the freedom of millions of Americans who voluntarily choose independent work. That rule created legal uncertainty for workers and businesses alike, chilling flexible work arrangements and job creation.
In their comment, Michael Pepson and Austen Bannan supported DOL’s return to a clearer “economic realities” framework that properly emphasizes two core factors: the degree of control over work and the worker’s opportunity for profit or loss. Prioritizing these factors aligns with Supreme Court precedent, provides fair notice to regulated entities, and better reflects how independent contractors actually operate in today’s economy.
AFPF emphasized that independent contracting benefits workers by expanding flexibility, autonomy, and opportunity—particularly for parents, students, caregivers, and entrepreneurs—and urged DOL to apply this clearer standard consistently across the Fair Labor Standards Act, Family and Medical Leave Act, and Migrant and Seasonal Agricultural Worker Protection Act.
As stated in the opening paragraph, “AFPF believes that workers and those that contract with them should be able to freely create work arrangements that work best for them. AFPF supports the Proposed Rule as a meaningful step toward respecting statutory and constitutional limits on DOL’s power, as well as restoring clarity and worker flexibility that workers and businesses are legally entitled to.”
See AFPF’s comment here.
For more on federal reforms to advance self-employment and flexible work pathways, continue here.
Austen Bannan is an Employment Policy Fellow and Michael Pepson is Regulatory Counsel at Americans for Prosperity.
