From JDSupra, Jackson Lewis P.C. provides a terrific overview of what to expect in 2026 from the administration including for independent contractors. Jackson Lewis P.C. anticipates the Department of Labor and National Labor Relations Board may take actions that will affect companies that engage with independent contractors. Jackson Lewis P.C. writes:
National Labor Relations Board
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3. Independent Contractor Test
The Trump Board will likely return to the SuperShuttle test for determining whether an individual is an independent contractor. This would be a shift from the current The Atlanta Opera Inc. standard that makes it easier to establish employee status.
The SuperShuttle test focuses on the extent to which the arrangement between the ostensible employer and the alleged employee provided the individual an “entrepreneurial opportunity.”
This issue will likely ultimately be resolved in the courts.Department of Labor
On the Agenda
DOL Independent Contractor Proposed Rule
• The DOL rule would address independent contractor status under the FLSA.
• The proposed rule likely will return to the independent contractor factors adopted by rulemaking late in the first Trump Administration. This test focused on two “core” factors as having the greatest weight:
1. The nature and degree of control over the worker’s work; and
2. The worker’s opportunity for profit or loss based on initiative and/or investment.DOL Joint Employer Proposed Rule
• The rule will guide DOL enforcement of joint employer liability under the FLSA.
• DOL likely will return to the 2020 joint employer rule adopted in the first Trump Administration:
• Actual, not mere theoretical, exercise of control is required to establish a joint employment relationship.
• The existence of a franchisor relationship is a “neutral” factor, among other “neutral” business models,
practices and contract provisions.
• Economic dependence is irrelevant.
• For now, case law controls, and the breadth of “joint employment” varies by circuit.
Read the complete overview at The Year Ahead 2026 | Jackson Lewis P.C. – JDSupra