Wage and Hour Division publishes its 2026 regulatory agenda

Joint employer proposed rule: July 2026

Since 2021, the WHD has had no regulatory guidance addressing joint employer liability under the Fair Labor Standards Act (FLSA). The WHD is considering a proposed rule to adopt regulations that would guide WHD enforcement of joint employer liability under the FLSA, the Family and Medical Leave Act (FMLA), and the Migrant and Seasonal Agricultural Workers Protection Act (MSPA). The WHD says that joint employer status under the FMLA and MSPA should be determined using the FLSA analysis.

When a rule is earmarked in the regulatory agenda as a “proposed rule,” that means the public expects to see written documentation on which they can provide their comments. The agencies involved then review the comments, and the rule moves to the next step in the legislative process. The dates listed are estimates that the agencies think they’ll have something posted for review.

Independent contractor final rule: October 2026

In 2024, the WHD published a final rule providing an analysis for determining employee or independent contractor (IC) classification under the FLSA. The 2024 IC rule took effect on March 11, 2024. The 2024 IC rule, however, is the subject of legal challenges. The WHD intends to rescind the 2024 IC rule. The WHD has also proposed to modify regulations interpreting the FMLA and MSPA to clarify that the analysis for determining employee or IC status under the FLSA also applies under the FMLA and MSPA.

The WHD considered three alternatives to the proposed rule, listed below from least to most restrictive:

1. Adopting the common law control test, which applies in distinguishing between employees and ICs under various other federal laws;
2. Adopting the WHD’s current enforcement policy, which is comprised of sub-regulatory guidance from before 2021 applying a multifactor economic reality balancing test; and
3. Adopting a 3-pronged “ABC” test (which several states have adopted).

The WHD issued a proposed rule in February 2026, and the comment period ended on April 28.

A final rule addresses the public comments submitted in response to a proposed rule to help determine the final regulatory language. When an agency publishes a final rule, generally the rule is effective no less than 30 days after the date of publication in the Federal Register. A final rule doesn’t take effect until its “effective date” is reached.

Key to remember: The Wage and Hour Division is looking to revise the joint employer and independent contractor regulations.