Employee or independent contractor
Free. Last updated 5 October 2026
Six years of 1099s, a signed contractor agreement, and a line in the company directory that says vendor. None of that answers the question. Under federal wage law the answer turns on what the working relationship actually looked like, and the paperwork is close to the least important thing in it.
What you signed does not decide it
The Department of Labor states this directly: what a worker is called is not relevant, a worker paid off the books or on a 1099 is not necessarily a contractor, and agreeing — verbally or in writing — to be classified as an independent contractor does not make you one.
This matters because the agreement is the first thing produced when someone pushes back, and it is usually produced as though it settles the matter. It does not. A worker can be an employee under the Fair Labor Standards Act regardless of the title, the tax form, or their own signature on a document saying otherwise.
What the test actually asks
The question is economic dependence: are you in business for yourself, or are you economically dependent on this company for work? Six factors guide that assessment (29 CFR 795.110). All of them are weighed together, and no single factor decides — there is no one fact that wins the argument, in either direction.
- Opportunity for profit or loss through managerial skill. Can your own decisions — pricing, which jobs you take, how you run the work — make you more or less money?
- Investments by you and by the company. Not whether you own a toolbox, but whether your spending is the kind a business makes to grow.
- Permanence of the relationship. Indefinite, continuous, exclusive work points toward employment. Project-based, non-exclusive work points the other way.
- Nature and degree of control. Who sets the schedule, supervises the work, sets the rules, decides whether you may work for others.
- Whether the work is integral to the business. Is what you do central to what the company sells, or genuinely ancillary to it?
- Skill and initiative. Do you bring specialized business skill you use to compete, or does the company train you to do it their way?
The ground is moving right now, and most pages will not tell you
This is the part worth reading twice, because it changes what any answer is worth.
- The 2024 rule (29 CFR Part 795, effective 11 March 2024) sets out the six-factor test above. Its legality is the subject of ongoing litigation, and it remains in effect for purposes of private litigation — that is, for a lawsuit you bring.
- The Wage and Hour Division's own enforcement position is set out separately in Field Assistance Bulletin 2025-1 of 1 May 2025, and is not identical.
- On 26 February 2026 the Department proposed a new rule covering classification under the FLSA, the Family and Medical Leave Act and the Migrant and Seasonal Agricultural Worker Protection Act. The comment period closed on 28 April 2026.
So a page that lists six factors and stops has told you how a court would weigh a private suit today, while leaving out that the agency enforcing the law is operating on a different footing and a replacement rule is pending. We would rather say it plainly than look tidier than the law is.
Your state may apply a stricter test
Federal law is a floor, not the whole picture. Some states use their own, narrower test for wage, unemployment and workers' compensation purposes, and a worker who is a contractor federally can be an employee under state law. Your state labor department is a separate route with separate deadlines, and it is worth asking about even if the federal answer looks unfavorable.
What to do, in order
- Write down the facts while you still have access. Schedules with your name on them, who assigned the work, who set the hours, whether you could decline a job or work for a competitor, what equipment was yours. Date every note. A record made while the job is ongoing is evidence; the same recollection assembled after a dispute starts is testimony, and worth considerably less.
- Keep the pay records. Every 1099, every invoice, every pay stub. Hours matter: the whole value of the claim is usually unpaid overtime.
- File with the Wage and Hour Division if you choose to. It costs nothing: How to file a complaint, or 1-866-487-9243. Complaints are confidential — the Division states that your name, the nature of the complaint, and whether a complaint exists at all may not be disclosed. Retaliation for filing or cooperating is prohibited.
- Ask about the clock early. Wage claims have time limits, and they run while you are deciding. This is the single most common way a good claim becomes worthless.
Where to read the primary sources
- Misclassification under the FLSA — the Department's landing page, with the current rulemaking notice.
- Fact Sheet 13 — the six factors in the Department's own words.
What this page is not
It is not legal advice, and nobody can tell you your answer from a web page — the test is explicitly a weighing of your particular facts. What we can do is tell you which facts are the ones being weighed, so that you gather the right ones before they are out of reach.