Independent Contractor Status Questionnaire
(FLSA)

Summary

This template is an independent contractor status questionnaire that provides guidance for assessing whether a worker is an independent contractor or employee under the federal Fair Labor Standards Act (FLSA). This template includes practical guidance and drafting notes. This template is intended for private employers. It is based on factors recognized by the Department of Labor (DOL) under the so-called economic realities test for purposes of FLSA compliance. The DOL has recently amended its economic realities test, and the new test is effective as of March 11, 2024. This template provides guidance on the DOL amended economic realities independent contractor test. The factors under the DOL's economic realities test are similar, but not identical, to the economic realities test factors considered by federal courts in FLSA cases. See the drafting notes for more information on the economic realities test. This template is not intended for use in connection with other classification tests that may be relevant for state law purposes or other federal statutes. To use this questionnaire, answer each question "yes" or "no" and then tally the respective employee (EE) and independent contractor (IC) indicators for each factor based on those answers. A preponderance of either EE or IC indicators for a factor suggests the factor supports the indicated status. Note that the economic realities test balances all of an individual's circumstances. There is no mathematical formula that guarantees that a court will consider a particular worker an independent contractor. For a full listing of key content covering independent contractor considerations, see Independent Contractor Resource Kit. For information on evaluating workers' status and the risks of misclassifying employees as independent contractors, see Independent Contractor Tests and Risks of Worker Misclassification, Independent Contractor Classification Audits and Reclassifying Employees and Independent Contractors, and Independent Contractor Red Flag Checklist. For information on how to establish and maintain independent contractor status for workers, see Independent Contractor Agreements: Major Negotiation, Drafting, and Legal Issues, Independent Contractor Agreements: Major Negotiation, Drafting, and Legal Issues, Independent Contractor Agreement Drafting Checklist, and Independent Contractor Status Maintenance Checklist. For an independent contractor services agreement, see Independent Contractor Agreement (Pro-service Recipient). For information on independent contractor issues governed by state law, see Independent Contractors State Practice Notes Chart and the Independent Contractors and Interns column of Wage and Hour State Expert Forms Chart.