Policy Matters Ohio’s comment to the Dept. of Labor
Daniel Navarrete, Director
Division of Regulations, Legislation, and Interpretation
Wage and Hour Division
U.S. Department of Labor, Room S-3502
200 Constitution Avenue NW
Washington, D.C. 20210
Comments on RIN 1235-AA46: Employee or Independent Contractor Status under the Fair Labor Standards Act, Family and Medical Leave Act, and Migrant and Seasonal Agricultural Worker Protection Act
Dear Director Navarrete:
Policy Matters Ohio submits these comments on the Department of Labor’s (“Department” or “DOL”) Notice of Proposed Rulemaking (“NPRM”) regarding the standard for determining who is an employee and who is an independent contractor under the Fair Labor Standards Act (“FLSA”), the Family and Medical Leave Act (“FMLA”) and the Migrant and Seasonal Agricultural Worker Protection Act (“MSPA”), RIN 1235-AA46; Fed. Reg. Vol. 91, No. 39 (Feb. 27, 2026) (“NPRM”).
All three statutes define “employ” as “to suffer or permit to work,” a strikingly broad definition of employment. Congress defined employment expansively to ensure that business owners were responsible for minimum labor standards for workers in their businesses. DOL’s attempt to narrow the definition of “employ” under these statutes is contrary to controlling law and will create confusion and enable more evasion of baseline worker protections. For the reasons stated below, Policy Matters Ohio writes in opposition to this NPRM and urges DOL to withdraw this proposed rule.
Policy Matters Ohio is a nonprofit, nonpartisan think tank with a mission of creating a more vibrant, equitable, sustainable, and inclusive Ohio. We do so through research, strategic communications, coalition building, and policy advocacy. We work closely with Worker Centers across the state, advocating for adequate funding to enforce wage and hour laws and pass legislation that protects workers from unscrupulous employers. This NPRM is in direct conflict with the needs of our partners and Ohioans at large.
Across the country, corporations mislabel the workers powering their businesses as “independent contractors,” “self-employed,” or “freelancers” even though these workers are not in business for themselves. Corporations do this to shift the risks and costs of the business onto their workers, while channeling wealth to investors and CEOs. When they engage in this sham practice, corporations depress wages and working conditions and shed responsibility for their workers while maintaining control over key decisions, such as where, how, and for how much money workers perform their jobs. The result is that the very conditions that the Fair Labor Standards Act was designed to combat—conditions “detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers,” 29 U.S.C. § 202(a)— flourish.
Independent contractor misclassification is a persistent problem in many growing industries where the work is poorly paid, labor intensive, and high risk, including home care, janitorial, trucking, delivery, construction, personal services, hospitality and, more recently, app-dispatched jobs. It is no coincidence that Black, immigrant, and other workers of color—who face discrimination and occupational segregation that limits their job opportunities—are overrepresented in these jobs.
Misclassification has real-world consequences. Studies show that the earnings of independent contractors in poorly paid occupations lag their employee counterparts, and some of these so-called independent contractors do not even earn the federal minimum wage. Misclassification makes already difficult jobs much worse and exacerbates racialized income and wealth inequities.
By elevating two factors above other equally important factors, the Trump administration’s test fails to account for the economic realities of many working relationships and will narrow who is a covered employee under these three statutes. DOL’s NPRM will enable misclassification schemes and a race to the bottom where employers will be able to reclassify their employees as independent contractors and evade their obligations under these laws. While this will harm a broad array of workers, it will inflict the most damage on workers of color who predominate in the low-paying jobs where independent contractor misclassification is common.
This NPRM undermines the broad coverage Congress intended under FLSA, the FMLA, and the MSPA and it provides employers with a roadmap to degrade the quality of jobs across the country.
The top occupations in Ohio are some of the biggest targets for employers who aim to steal from workers. Home Health and Personal Care Aides (8th most common job) and Heavy and Tractor-Trailer Truck Drivers (10th most common job) make up nearly 200,000 workers in Ohio. The annual per-worker cost in lost compensation for Ohio Home Health and Personal Care Aides misclassified as independent workers is $10,065; for Heavy and Tractor-Trailer Truck Drivers it is $23,673. These jobs are essential for a functioning economy, and stripping protections from workers holding these positions will threaten economic stability across all other industries that rely on their services.
The Department of Labor should not narrow the definition of employee and create incentives for employers to contract away their legal duties and immunize themselves from responsibility for the workplace conditions they create. Such a standard would degrade workers’ labor conditions, permit wage theft and unlawful child labor, and shift all economic risks to the workers, depriving them of their statutory rights.
All labor has value and every worker deserves to be compensated for the value they create. Ensuring workers are classified correctly is necessary for maintaining economic stability not only at the individual level, but in the labor market at large. Policy Matters Ohio stands firm against this NPRM and demands the proposed regulation be withdrawn.
Sincerely,
Heather Smith
Work and Wages Researcher
Policy Matters Ohio