The U.S. Department of Labor published a proposed rule on independent contractor classification on Feb. 26, 2026, that is widely welcomed as a return to a well-balanced, modern approach to the applicable rule in a way that is useful to workers and businesses to ensure legal compliance. Here is what newspapers need to know about the proposal, its status, and what it means for freelance journalist and newspaper carrier relationships.
The proposed rule
For newspapers, the proposed rule provides guidance on how to “operationalize” the legal test that defines whether a worker is an independent contractor or an employee under the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA). The two core factors are:
When both factors point in the same direction, classification is generally straightforward. If the newspaper does not control the details of the work and the worker retains the opportunity to impact their profit or loss with respect to the work, the worker is an independent contractor, whereas if the opposite is true (the newspaper controls the details of the work and the worker does not have the opportunity to impact their profits based on their own choices, the worker is an employee. Three secondary factors apply when the primary factors produce a mixed result: the skill level the work requires, the permanence or duration of the relationship, and whether the worker’s work is integrated into a single unit of production with other workers of the newspaper.
The U.S. Small Business Administration Office of Advocacy estimates the proposed rule will save small businesses $2.31 billion over the next decade in compliance costs.
Current regulatory status and litigation exposure
The recently-proposed rule to define independent contractor status under the FLSA is not yet final. The 2024 rule technically remains in effect for purposes of private litigation, even though the DOL has ceased active enforcement under that standard and directed field staff to apply an older 2008 guidance framework for agency investigations.
This means a plaintiff's attorney can file a private misclassification claim under the 2024 six-factor rule in federal court today. The proposed rule provides no defense against such a claim until it is finalized.
State law governs independently
The federal rule, when finalized, does not override state classification law. Publishers in California, Illinois, New Jersey, New York and other states with independent classification standards retain full exposure under those frameworks regardless of what DOL finalizes. California's AB 5 applies a three-part ABC test that presumes employee status; under Prong B, workers performing tasks central to the publisher's core business face a particularly high bar for independent contractor status. New Jersey codified its own ABC test on May 5, 2026, effective Oct. 1, 2026. State-specific counsel is essential for publishers operating in those jurisdictions.
What the proposed rule means for freelance journalists
The two-factor framework supports independent contractor status for most freelance journalist relationships.
A journalist who pitches her own stories, negotiates her own rates, works for multiple publications, uses her own equipment and delivers finished copy against an agreed deadline exercises independent control over her work. The publisher receives the product; it does not supervise the process. That satisfies the control factor.
A journalist who builds her own client base, absorbs the cost of unrealized pitches, and succeeds or fails based on her own initiative operates a business. She is not economically dependent on any single publisher for her livelihood. That satisfies the profit-and-loss factor.
The supplemental "integrated unit" factor provides additional support for the typical stringer or regional contributor. A freelancer covering a county commission meeting once a month is delivering a discrete work product, not embedded in the editorial operation, which weighs in favor of independent contractor status. One critical point applies to all contractor arrangements under any classification standard: actual practice is the most important factor, not the contract language. A freelance agreement that on its face does not control the details of the work and provides opportunities for the freelancer to impact their profit by their own choices in their business will not control the analysis if the practice in fact does not reflect these contractual provisions.
Some newspaper carriers have an additional defense to employee status
Some newspaper carriers are not covered by the FLSA’s child labor, overtime, recordkeeping or minimum wage obligations, even if they do not meet the definition of independent contractor described above. Newspaper carriers who deliver directly to ultimate consumers are exempt from the FLSA under Section 213(d). Typically, home delivery carriers and single copy hawkers are considered exempt under this provision. The exemption applies whether the carrier is delivering a newspaper or shopping news.
As a result, newspapers do not have a federal obligation to pay FLSA-exempt newspaper carriers overtime, for example. Whether a state or local law requires such payments is determined by reference to each individual jurisdiction’s labor laws. If that law does not have a specific newspaper exemption, then the analysis will be whether the worker complies with the state law’s definition of independent contractor status, which again varies by state.
The FLSA’s 213(d) exemption does resolve state law exposure for minimum wage and overtime in a number of states. For example, North Carolina expressly incorporates the 213(d) carrier exemption into its own wage and hour law by regulation. In addition, other federal laws such as the National Labor Relations Act and Title VII of the Civil Rights Act of 1964, as amended, do not include this exemption, which is unique to the FLSA. It is prudent to review this issue with informed labor and employment counsel to ensure compliance. It is also prudent to review your newspaper delivery relationships under the Internal Revenue Code for both compliance with Section 3508 of the IRC (which provides an exemption for certain newspaper carriers that meet specific requirements) as well as the IRC’s common law definition of employee.
Summary
Watch for final action by the Department of Labor with respect to the proposed rule. A final rule is expected as early as the third quarter of 2026. Ensure that your independent contractor relationships are well grounded in the legal principles that govern those relationships, including any specific newspaper exemptions that may apply, as well as compliance with legal definitions that are applicable under other federal, state and local laws.
Camille Olson is a nationally recognized labor and employment attorney and partner at Seyfarth Shaw. She co-chairs the firm’s National Complex Litigation Practice Group and leads its Complex Discrimination Litigation Practice. A prominent employer-side advocate, she is a frequent adviser on workplace law, public policy and high-profile employment litigation. She is a director with America’s Newspapers.
