flexiblefullpage - default
Currently Reading

New Guidelines for Determining Worker Status

billboard - default

New Guidelines for Determining Worker Status

NAHB Policy Briefing: Proposed rule will change how the Department of Labor determines employee/independent contractor status; latest Housing Market Index shows builder confidence declining

By The National Association of Home Builders November 3, 2022
Construction worker classified as independent contractor fitting copper pipe in wall
The National Association of Home Builders supports the proposal because it will give home builders and specialty trade contractors a clearer, simpler federal test for determining worker status. | Photo: Rawpixel

On Oct. 13, the U.S. Department of Labor (DOL) issued a proposed rule that will change the way DOL determines whether workers should be classified as employees or as independent contractors under the Fair Labor Standards Act (FLSA).

If finalized, the proposal will replace the current standard, which the National Association of Home Builders (NAHB) supports for giving regulated employers and small businesses, including home builders and specialty trade contractors, a clearer, simpler federal test for determining worker status.

Residential construction remains an industry of independent entrepreneurs, with most residential builders typically subcontracting a large portion of their construction work to independent specialty trade contractors. In fact, the typical home builder uses up to 30 subcontractors to construct a single-family home.


Test to Determine Worker Classification

The proposed rule would use a revised “economic reality test” to determine whether a worker is economically dependent on the employer or truly in business for himself or herself. This “economic reality test” consists of six factors:

  1. Is the work performed an integral part of the employer’s business?
  2. Does the worker’s managerial skill affect the worker’s opportunity for profit or loss?
  3. Is the relationship between the worker and employer permanent or indefinite?
  4. What is the nature and degree of the employer’s control?
  5. Does the worker use specialized skills to perform the work, and do those skills contribute to business-like initiative?
  6. Are investments by a worker capital or entrepreneurial in nature?


A Way to Combat Employee Misclassification

DOL officials said they are putting forward the rule to combat employee misclassification, which occurs when an employer incorrectly defines a worker as an independent contractor rather than an employee. “[Employee] misclassification deprives workers of their federal labor protections, including their right to be paid their full, legally earned wages,” said Labor Secretary Marty Walsh.

NAHB supports enforcement of the rules on the classification of workers, including the current FLSA rule. That rule gives greater weight to two factors in determining whether a worker is an employee or an independent contractor: the nature and degree of the worker’s control over the work, and the worker’s opportunity for profit or loss.

The Labor Department’s Wage and Hour Division is soliciting comments on the proposed rule until Nov. 28, 2022. NAHB is reviewing the proposed rule and its potential effects on the home building industry and will provide comments to DOL.

Housing Market Index Indicates Builder Confidence Continues to Decline

Builder confidence in the housing market fell for the 10th consecutive month in October, battered by rising mortgage interest rates and ongoing supply chain disruptions. Confidence in the market for newly built single-family homes dropped eight points in October to 38—half the level it was just six months ago—according to the National Association of Home Builders/Wells Fargo Housing Market Index (HMI).

The HMI gauges builder perceptions of current single-family home sales and sales expectations and asks builders to rate traffic of prospective buyers. Any number under 50 indicates that more builders view conditions as poor than good. This will be the first year since 2011 to see a decline in single-family starts as high mortgage rates approaching 7% have quashed demand, particularly for entry-level and first-time move-up buyers. NAHB economists forecast additional single-family building declines in 2023 as the housing contraction continues.

Builder confidence chart showing Housing Market Index data from 2021-2022


For more historical HMI data (1985-2022), see below.

Housing Market Index data 1985-2022


leaderboard2 - default
Written By

The National Association of Home Builders (NAHB) is a Washington, D.C.-based trade association representing more than 140,000 members involved in home building, remodeling, multifamily construction, property management, subcontracting, design, housing finance, building product manufacturing, and other aspects of residential and light commercial construction. For more, visit nahb.orgFacebook.com/NAHBhomeTwitter.com/NAHBhome

Related Stories


Overcoming Challenges, Celebrating Victories

NAHB Chairman's Message: 2023 was a challenging year for home building, but among the challenges, there were many victories as well


NAHB Advocacy Efforts and Outcomes

NAHB Policy Briefing: Advocacy efforts by the National Association of Home Builders are making a difference; analysis of 2021 American Housing Survey data

Market Data + Trends

Builder Sentiment Rises for Third Consecutive Month

A combination of factors is buoying home builder confidence in February, with the latest NAHB/Wells Fargo Housing Market Index at its highest level since last August

boombox1 -
native1 - default
halfpage2 -

More in Category

Delaware-based Schell Brothers, our 2023 Builder of the Year, brings a refreshing approach to delivering homes and measuring success with an overriding mission of happiness

NAHB Chairman's Message: In a challenging business environment for home builders, and with higher housing costs for families, the National Association of Home Builders is working to help home builders better meet the nation's housing needs

Sure there are challenges, but overall, Pro Builder's annual Housing Forecast Survey finds home builders are optimistic about the coming year

native2 - default
halfpage1 -

Create an account

By creating an account, you agree to Pro Builder's terms of service and privacy policy.

Daily Feed Newsletter

Get Pro Builder in your inbox

Each day, Pro Builder's editors assemble the latest breaking industry news, hottest trends, and most relevant research, delivered to your inbox.

Save the stories you care about

Lorem ipsum dolor sit amet lorem ipsum dolor sit amet lorem ipsum dolor sit amet.

The bookmark icon allows you to save any story to your account to read it later
Tap it once to save, and tap it again to unsave

It looks like you’re using an ad-blocker!

Pro Builder is an advertisting supported site and we noticed you have ad-blocking enabled in your browser. There are two ways you can keep reading:

Disable your ad-blocker
Disable now
Subscribe to Pro Builder
Already a member? Sign in
Become a Member

Subscribe to Pro Builder for unlimited access

Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua.