Littman v. U.S. Department of Labor

The Fair Labor Standards Act (FLSA) requires employers to provide minimum wages and other benefits to “employees.” Often, however, employers misclassify employees as independent contractors. In 2021, the Department of Labor (DOL) issued a regulation setting forth a view of how to determine whether a worker is an employee or an independent contractor for purposes of the FLSA that departed from the longstanding approach used by DOL and courts. In 2024, the Department issued a new regulation, rescinding the 2021 regulation and setting out the factors that the agency would consider moving forward.

Two freelance writers challenged the 2024 regulation in a Tennessee district court. They argue that the regulation is arbitrary and capricious and exceeded statutory authority. In response to their motion for a preliminary injunction, we filed an amicus brief on behalf of Public Citizen and the National Employment Law Project (NELP) in support of DOL’s opposition to the motion. The brief explains that misclassification of workers is a significant problem, that the 2024 regulation is consistent with case law from around the country, and that the rule is within the agency’s statutory authority.

In November 2024, the magistrate judge, in a report and recommendation to the district court, recommended that the case be dismissed because the plaintiffs lack standing.

Similar cases are pending in district courts in Texas, New Mexico, and Georgia and in the Fifth Circuit Court of Appeals, where we also filed as amicus curiae.