Classification decides whether you get minimum wage, overtime, an employer-paid half of payroll taxes and unemployment cover. Which test decides it currently depends on who is asking: the Department of Labor's investigators apply a 2008 framework, private lawsuits still run on the 2024 rule, and states such as California apply a stricter ABC test that overrides both for state-law purposes.
What changes with the label
An employee gets the minimum wage, overtime, employer-paid half of Social Security and Medicare, unemployment insurance, workers’ compensation and anti-discrimination coverage. A contractor gets none of those and pays self-employment tax on the whole amount.
A contract calling you an independent contractor does not settle it. The test looks at the reality of the relationship, and the label is evidence of intention rather than of fact.
Three tests, live at the same time
Department of Labor investigations. Since 1 May 2025 investigators have been instructed not to apply the 2024 rule and to use the older Fact Sheet 13 framework instead, as interpreted by a reinstated 2019 opinion letter.
Private litigation. The 2024 six-factor economic reality rule remains on the books and still governs there. A proposed rescission was published in February 2026, restoring a structure closer to the 2021 rule with control and opportunity for profit or loss as core factors, and had not been finalised as of writing.
Your state. California and several others use an ABC test, under which you are an employee unless the hiring entity proves all three of freedom from control, work outside its usual course of business, and an independently established trade. It is much harder to satisfy, and it governs state wage claims regardless of the federal position.
And two more, for different purposes
The IRS applies its own common law test for tax, and the National Labor Relations Act applies another for organizing rights. The same person can be an employee for one and a contractor for another without anything being wrong.
What to do if you think you are misclassified
Write down who controls the how, the when and the where; whether you can realize a profit or a loss; whether you work for others; and how permanent the arrangement is. Then check your state test first, because it is usually the more protective one and the one that pays.
Common questions
Does my contract decide my status?
No. The test looks at the reality of the relationship, and a label is evidence of intention rather than of fact.
Why do different tests apply?
Because Department of Labor investigations, private litigation and state law each use their own standard, and they currently differ.
Which test does the DOL use now?
Since May 2025 investigators use the older Fact Sheet 13 framework, not the 2024 rule, while a rescission of that rule is pending.
What is the ABC test?
A stricter state standard treating you as an employee unless the hiring entity proves freedom from control, work outside its usual business, and an independent trade.
What does misclassification cost me?
Minimum wage, overtime, the employer's half of payroll taxes, unemployment insurance and workers' compensation, all at once.