AgencyU.S. Department of Labor, Wage and Hour Division
Proposed rule91 FR 9932, Feb. 27, 2026, RIN 1235-AA46
Comment periodFeb. 27 to Apr. 28, 2026
StatusFinal rule received by OIRA , economically significant. OIRA concluded its review on Oct. 28, 2026, consistent with change. Not yet in the Federal Register as of Oct. 31, 2026
Version1.6, November 4, 2026. Data cutoff Oct. 22, 2026
Question this report answersWho commented on the proposal, through which channels, what did each side argue, and which arguments will the final rule need to answer?
Bottom line up front
Four forms and templates wrote of the 16,363 typed comments, and all four support the proposal. The DoorDash form alone holds . The arguments a court would weigh sit in the 170 attached letters, where the proposal.
Opposing letters ask whether weighting two "core factors" fits the statute and the Supreme Court cases, and whether the Department counted what misclassification costs workers and states. Supporting letters ask for a stable test after the changes of 2021 and 2024, and ask for changes of their own. The final rule reached the White House Office of Information and Regulatory Affairs on , and OIRA concluded its review on October 28, 2026, consistent with change, so publication can come at any time. In court its answers to both sets of letters will count for more than the number of comments on either side.
Key findings
Every underlined item opens the source it comes from. Likelihood words follow ICD 203 and are analyst judgments.
Six findings
Four forms wrote 95.9% of the typed comments, all in support.
The DoorDash "Dasher" form holds 11,277 comments. Three templates for independent financial professionals hold . An Instacart form that opens with a prompt holds , and of them stop at the prompt with nothing added. A letter on women and independent work holds . Together they make 15,690 of 16,363 typed comments.
High confidence
Every typed comment classified by its opening text and template; counts computed from the full posted record.
92.3% of the DoorDash forms arrived word for word as written.
Of 11,277 DoorDash forms, carry the template body unchanged and differ only in the signature. carry the Spanish version and 701 add or change text. The forms arrived from April 1 to April 28, the last day of the period. DoorDash also filed its own letter asking the Department to
High confidence
Text comparison after removing the salutation and signature; comment 15202.
Once company prompts are set aside, a third of personal comments push back on pay or control.
Of the 655 personal comments outside the forms, carry signs of a company prompt, such as a fixed opening line, a letter addressed to lawmakers or the signature block of a submission tool. In a random sample of 120, 31 of the 32 prompted comments support the proposal or independent status. Among the 88 unprompted ones, support it and oppose it or complain about pay, tips or app control, with 95% intervals of 48 to 68% and 23 to 42%. Seven of the 13 opposing comments share one writing style, which appears in across the docket.
Moderate confidence
Sample read by an analyst, random seed 11; prompt markers and phrase search applied to all typed comments.
The organization letters split by sector, with one exception in construction.
All six platform and staffing companies and 83 of 87 business and trade groups support the proposal. 28 of 29 worker advocacy and legal aid groups and 6 of 7 unions oppose it. Governments split, 7 against and 3 for. Two associations of union-signatory contractors, and SWACCA, oppose it, and the sheet metal union and its contractors' association ask jointly for a on construction sites.
High confidence
Each attached letter read for its stated position; senders typed from the letterhead.
Nearly all of the record is visible, posted within a day of the close.
The docket counter shows comments received and the public record holds , 99.9%. The last records were posted April 29, 2026, the day after comments closed, and the Department posted on April 27 alone. The gaps are 24 submissions the Department logged and did not post, and 11 attachments we could not download. Readers can check most claims the final rule makes about the comments against the posted record. The docket also holds , a March 4 meeting with Direct Selling Association members and an April 9 SBA Office of Advocacy roundtable.
High confidence
Full collection of the posted docket; posting dates from the Regulations.gov API; docket page checked October 22, 2026.
Supporters ask for changes too, most often to what counts as control.
At least supporting letters ask the Department to clarify, add or change something in the final rule. 13 ask about control, usually that complying with legal, safety or industry rules, or using app and technology tools, is not control. 12 ask for examples from their own industry, from trucking lease-purchases to beauty schools and farm labor contractors. 7 ask to adjust other factors, and the Institute for the American Worker asks to limit or drop the integrated unit factor. Instacart asks the Department to state that are not control, the same kind of tools the critical personal comments describe as control.
Moderate confidence
Sentence-level search of the 115 supporting letters for requests to clarify, add, remove or revise, each match read and classified by an analyst; requests phrased in other ways are missed, so 43 is a lower bound.
The record in numbers
What arrived, and what it holds
comments received, docket counter
records posted to the public docket
typed comments from four forms
personal comments outside the forms
attached letters, read in full
median wait from receipt to posting
16,522Received, docket counter
16,498Posted to the public docket
16,363Typed text; 135 more point to an attachment
15,690From four forms and templates
655Personal comments outside the forms
466Personal comments with no sign of a company prompt
170Attached letters, 164 from organizations or officials
Channels
Where the typed comments came from
Channel
Comments
Share
Received
Position
DoorDash "Dasher" form, English and Spanish
68.9%
Apr. 1 to Apr. 28
Supports
Independent financial professional letters, three templates
15.6%
Mar. 27 to Apr. 28
Supports
Instacart prompt form
9.7%
Mar. 16 to Apr. 23, 74% on Mar. 19
Supports flexibility
Women and independent work letter
1.7%
Mar. 5 to Apr. 28
Supports
Personal comments, no platform named
2.5%
Feb. 27 to Apr. 28
Mixed
Personal comments naming Instacart, Uber, Lyft or DoorDash
1.5%
Mar. 10 to Apr. 28
Mixed
Off-topic, adult education
18
0.1%
Apr. 13 to Apr. 28
None
Share of the 16,363 typed comments, by channel
DoorDash form68.9%
Financial templates15.6%
Instacart prompt9.7%
Women letter1.7%
Personal comments4.0%
Off-topic0.1%
Shares are of 16,363 typed comments. We could not identify the sponsor of the financial professional or women's templates from the text or from a web search on October 22, 2026. 189 of the personal comments carry signs of a company prompt, described in the next sections. Positions of the forms come from their fixed wording; positions of personal comments come from the sample below.
Who commented
Attached letters, by sender and position
Sender
Support
Oppose
Major changes
Total
Business or trade association
83
2
1
87
Worker advocacy or legal aid
0
28
1
29
Think tank or policy group
17
1
1
19
Government or elected officials
3
7
0
10
Union
0
6
1
7
App platform or staffing company
6
0
0
6
Law firm
3
3
0
6
Individual, including fellows writing in a personal capacity
3
1
2
6
All letters
6
170
Supporting letters include DoorDash, Instacart, Uber, Lyft and ShiftKey; the U.S. Chamber of Commerce, NFIB, the National Association of Manufacturers and the National Retail Federation; trucking groups including ATA and OOIDA; the Financial Services Institute and about a dozen broker-dealers and advisory firms; the chair and members of the Senate HELP Committee; the SBA Office of Advocacy; a group of statewide officials and state lawmakers.
Opposing letters include the AFL-CIO, SEIU, AFSCME, the Teamsters, North America's Building Trades Unions and the Carpenters; NELP, the National Domestic Workers Alliance and a coalition of farmworker legal services; a U.S. senator; the ranking members of the House Education and Workforce Committee and its workforce protections subcommittee; other members of the House; the Comptroller of Maryland and the New York City Comptroller; four local governments; a group of state legislators.
"Major changes" means the letter neither supports nor opposes the proposal and asks for a rule built differently, such as a presumption of employee status in construction. One business letter takes no position. Two letters filed twice are counted once. Comment 13090 attaches an Eleventh Circuit opinion, Galarza v. One Call Claims (Oct. 16, 2025), with no letter, and is excluded.
Personal comments
What individuals wrote outside the forms
Position
Unprompted, 88
95% interval
Prompted, 32
All, 120
Supports the proposal or independent status
48 to 68%
31
82 (68%)
Opposes the proposal
13 (15%)
9 to 24%
0
13 (11%)
Values flexibility and criticizes platform pay or control
7 (8%)
4 to 16%
1
8 (7%)
Complains about pay or protections, no stance on the rule
8 (9%)
5 to 17%
0
8 (7%)
Position only in an attachment
3 (3%)
1 to 10%
0
3 (3%)
Off-topic or unclear
6 (7%)
3 to 14%
0
6 (5%)
Seven of the 13 opposing comments share one writing style that recurs in , a cluster with shared wording that we cannot attribute to one author; without that cluster the opposing share falls to 7% of unprompted comments. The 655 personal comments also hold 81 texts that repeat word for word in 33 groups, so they count submissions and overstate distinct people.
Most supporters describe a schedule built around children, a parent's care, school or a second job. The critics use the Department's own test against the platforms. One DoorDash driver writes that Another lists the hours the app does not pay, A supporter of independent status asks for limits on These complaints go to the control factor, which the proposal makes one of its two core factors and measures by actual practice.
Inside the forms the same complaints appear rarely. Of the 1,586 Instacart prompt forms, mention batched orders and 18 mention tips.
Background
How the test got here
Date
Event
Source
Jan. 7, 2021
Final rule adopts the two core factors
86 FR 1168
Mar. 4, 2021
Department delays its effective date
86 FR 12535
May 6, 2021
Department withdraws the 2021 rule
86 FR 24303
Mar. 14, 2022
District court vacates the delay and the withdrawal, Coalition for Workforce Innovation v. Walsh (E.D. Tex.)
2022 WL 1073346
Jan. 10, 2024
Final rule adopts the six-factor totality test, in effect Mar. 11, 2024; five lawsuits follow
89 FR 1638
May 1, 2025
Wage and Hour Division stops applying the 2024 rule in its investigations
Feb. 27, 2026
Proposal to return to the 2021 framework and extend it to the FMLA and the MSPA
Dates through May 2025 come from the history in the proposed rule, 91 FR 9932.
Arguments on file
The significant arguments the final rule must confront
An agency must respond to significant comments, and a rule fails review when the agency The duty runs to significant comments and important aspects of the problem, and a form comment can raise one as well as a letter can. We chose the pairs below because each argument recurs across letters from different senders and goes to the statute, the cost analysis or the scope of the rule. The final rule is not public yet, so each pair sets an argument on file against what readers should look for when it is published.
A stable test and the Supreme Court cases
Supporting letters
Small Business & Entrepreneurship Council, comment 11602, with business groups
"The proposed rule appropriately restores clarity and balance by returning to a framework grounded in long-standing judicial precedent while recognizing the realities of modern commerce and work."
Supporters cite Rutherford Food and Silk too, in 31 of 115 letters, and 109 of the 115 ground their support in clarity or predictability.
What to look for
Whether the final rule shows how the two core factors produce more predictable results than the 2024 test, with examples that match the industries that asked, such as trucking, financial advice and app-based work.
Two core factors and the statute
At least 25 of 48 opposing letters
AFSCME, comment 16483, with unions and legal aid groups
"AFSCME strongly opposes this Proposed Rule and its elevation of control and opportunity for profit or loss as the 'core factors' in the Economic Realities Test."
At least 25 of the 48 opposing letters argue in so many words that giving two factors more weight conflicts with the statute or the cases. Most quote the FLSA's "suffer or permit to work" definition and cite Rutherford Food and Silk for a test of the whole relationship.
What to look for
Whether the final rule explains why weighting two factors above the rest matches those cases. After Loper Bright Enterprises v. Raimondo (2024), courts read the statute for themselves and give an agency reading weight only for its reasoning.
"I do not oppose independent contracting, but I do oppose this Proposed Rule, which would impose significant and unquantified costs on Maryland and states across the country without adequate justification."
The House ranking members write, 40 of the 48 opposing letters discuss lost unemployment insurance, payroll tax or workers' compensation, against 19 of 115 supporting letters.
What to look for
The proposal estimates in first-year familiarization costs, $682.7 million a year in cost savings and up to $17.6 billion over ten years in benefits to workers who enter the labor force. Its section on transfers treats them as largely a change in how each worker is paid and gives no figure for state revenue. Look for whether the final analysis adds one or explains why it cannot. Four local governments and the New York City Comptroller press the same point.
"As such, the Proposed Rule is unlikely to pass judicial scrutiny and should be withdrawn."
A letter from 36 organizations adds that a narrower FLSA reaches the Equal Pay Act and the for nursing mothers.
What to look for
Separate reasons for each statute. The proposal applies one test to all three because the FMLA and the MSPA borrow the FLSA's definition of employ. Southern Migrant Legal Services and Justice at Work PA write that their clients would lose protection under the FMLA and the MSPA as well.
Construction
Unions and signatory contractors
Mechanical Contractors Association of America, comment 6431
"MCAA opposes the NPRM because it will encourage the expansion of a business model in our industry that places MCAA members and other ethical contractors at a competitive disadvantage."
MCAA describes itself as an association of 3,000 signatory specialty contractors. ask jointly for a rebuttable presumption of employee status.
What to look for
Whether the rule answers the joint request from SMART and SMACNA for a rebuttable presumption of employee status on construction sites, or sends the industry to opinion letters, as MCAA expects. NABTU, the Carpenters and SWACCA raise the same concern.
Changes the supporters asked for
Supporting letters
Institute for the American Worker, comment 15001, and others
"In Section IV, we urge the Department to strengthen the Rule by rigorously limiting or even eliminating the 'integrated unit of production' factor."
23 of 115 supporting letters mention portable benefits or a safe harbor, and none of the opposing letters do; of them ask to change the rule text on it. Financial firms ask that rules they follow under securities law not count as control.
What to look for
Which requests the final text adopts. The National Taxpayers Union and the Senate HELP letter present portable benefits as a further step for policymakers. OOIDA already welcomed the revised speed limiter example in the proposal.
Counts come from sentence-level searches of the full text of the 170 letters, with the matching passages read to confirm them. They are lower bounds for arguments made in other words, and a match can be one passage of a long letter.
Implications and scenarios
Where this goes next
As the timeline shows, the Department stopped applying the 2024 rule in its own investigations through on May 1, 2025, and five lawsuits over the 2024 rule are stayed while it reconsiders. The 2024 rule still governs private suits until a final rule replaces it. OIRA received the final rule on September 28, 2026 and concluded its review on October 28, 2026, consistent with change. The rule had not appeared in the Federal Register or on public inspection as of October 31. The scenarios below are as logged on October 25; the conclusion of review is the signpost for the first one, and we will score it on the publication date rather than revise it.
Scenario
Likelihood
Confidence
Basis
What would change this view
The final rule is published before January 20, 2027
Likely
Moderate
Under OIRA review since September 28; Executive Order 12866 sets a 90-day review period that can be extended
OIRA extends review past December 27, 2026 or returns the rule
The final rule keeps the two core factors and the extension to the FMLA and the MSPA
Very likely
High
Central to the proposal; all six platform letters and 83 of 87 business letters support it
A final rule that drops the FMLA or MSPA extension or weights all factors equally
The final rule creates a presumption of employee status in construction
Very unlikely
High
The proposal readopts the 2021 framework, which has no industry presumptions
Any construction-specific provision in the regulatory text
Worker groups, states or local governments sue within six months of publication
Likely
Moderate
The 2024 rule drew five lawsuits; unions, legal aid groups, a state comptroller and four local governments say this one conflicts with the statute
A final rule that narrows its reach, or public statements by likely plaintiffs that they will not sue
Almost no chance 1-5% · Very unlikely 5-20% · Unlikely 20-45% · Roughly even 45-55% · Likely 55-80% · Very likely 80-95% · Almost certain 95-99%. The terms follow the probability scale of Intelligence Community Directive 203. They state an analyst's judgment from the sources cited and are not the output of a statistical model. Likelihood is the chance we assign to the event. Confidence is our view of the evidence behind it. High means many consistent sources, moderate credible but incomplete sources, and low thin or conflicting ones. Each judgment is recorded in the forecast log and will be scored when it resolves.
Implications by sector
What the record means for each stakeholder
The middle column is documented in the record. The right column is our inference and carries the uncertainty of the scenarios above. None of it is legal or investment advice.
Stakeholder
What the record shows
What we infer, and what to watch
App platforms
All six platform and staffing letters support the rule; ask that app and technology tools not count as control; critical personal comments describe those tools as control
The control factor, measured by actual practice, is where classification disputes will turn. Watch whether the examples in § 795.115 of the final rule cover app-based work.
Construction contractors
Union-signatory associations oppose; SMART and SMACNA ask for a presumption of employee status; ABC asks the Department to reaffirm its existing principle for construction
The sector splits by labor model, so either treatment of construction will draw objections. Watch for a construction example or a referral to opinion letters.
Financial services firms
2,557 template comments and about a dozen firm letters support; several ask that compliance with securities rules not count as control
Firms gain most if the final text adopts that clarification. Watch the control examples.
Trucking
ATA, OOIDA and other carrier groups support; OOIDA asks for a lease-purchase example; REAL Women in Trucking opposes
Owner-operator models depend on the investment and control factors. Watch the speed limiter and lease-purchase examples.
Multi-state employers
The proposal changes the federal test only; cite state ABC tests, most as a warning; New Jersey adopted final ABC rules for its wage and unemployment laws on May 5, 2026, operative October 1
Employers in ABC-test states will face overlapping classification standards after the federal change. Watch state rulemaking and legislation alongside the federal rule.
Worker groups and states
40 of 48 opposing letters discuss lost unemployment insurance, payroll tax or workers' compensation; the proposal for state revenue
The cost analysis is the most concrete ground for review under State Farm. Watch whether the final analysis adds a figure.
Recommended actions
What readers could do
Platform companiesThe personal comments on file describe unpaid waiting, acceptance-rate tiers and penalties for declining orders. The proposal measures control by actual practice, so review those practices with counsel against the final text when it is published.
Worker groups, statesWatch the Federal Register for the final rule. On publication, check first whether the impact analysis quantifies the state revenue effects discussed in 40 of 48 opposing letters, the ground for a claim under State Farm.
Contractors, trade groupsConstruction and financial services each asked for industry-specific treatment. If the final rule declines, the next route is an opinion letter from the Wage and Hour Division, the path MCAA's letter points to.
Reporters, researchersReport the typed comments by channel. 15,690 came through four forms, and 189 of the 655 personal comments carry signs of a company prompt. Counts of support and opposition read differently once channels are separated.
Method, sources and limits
How we built this report
Collection. All 16,498 posted records were collected through the Regulations.gov API by the Rulemaking Observatory in July 2026. On October 22, 2026 the docket page showed 16,522 submissions received and 16,498 published, and the API returned the same 16,498. Attachments were downloaded from the public file server and converted to text, with optical character recognition for four scanned files. The proposed rule was read in the Federal Register.
Prompts. A personal comment counts as prompted when it opens with a fixed line used by many others ("I need flexibility because", "Why is flexibility important to you?", "Independence and flexibility"), is addressed to lawmakers or mentions being asked for a story, or ends in the signature block a submission tool adds and is about flexibility. The rule is a screen, and some prompted comments it misses will sit among the unprompted.
Language-model markers, exploratory. Among 347 unprompted personal comments of 200 characters or more, meets the strict rule and 9, 2.6%, carry any marker. None of the 139 prompted comments carries one. No form template meets the strict rule, and 1 of the 701 edited DoorDash forms does; the 163 Spanish forms were not scored. Several weak words are common in professional writing, which is why the strict rule needs two of them or one strong phrase. A marker list can miss polished generated text and can flag people who write in that register, so these figures describe markers and say nothing final about authorship.
Marker lists. Strong phrases (delve, it is important to note, serves as a testament, underscore, plays a pivotal or crucial or vital role, navigate the complexities, in today's rapidly evolving, ever-evolving landscape, tapestry, as an AI) and weak words (multifaceted, holistic, nuanced, paramount, commendable, pivotal, furthermore, moreover, in conclusion, noteworthy, leverage, streamline, robust). The strict rule needs one strong phrase or two different weak words, the loose rule any one marker. Forms were scored once at the template and again on text members added.
Requests for change. Supporting letters were searched sentence by sentence for requests to clarify, add, remove, revise or include something. An analyst read every match, dropped requests to adopt the rule as proposed and grouped the rest by topic.
Classification. Each typed comment was assigned to a channel by its opening text and template, then checked by exact text comparison. Positions of personal comments come from a random sample of 120 of the 655 comments outside the forms, read in full by an analyst. Positions of the 170 attached letters come from each letter's own words, usually its opening or closing request. Sender types come from the letterhead.
Status check. On October 31, 2026, a Reginfo.gov review search for RIN 1235-AA46 showed the final rule received September 28, 2026 and concluded October 28, 2026, consistent with change. The same day the Federal Register API and the public inspection list showed no final rule.
Limits. 11 of the 184 comments with attachments could not be downloaded. Comments the Department received and did not post, 24 by the counter, cannot be analyzed. One analyst coded the sample and the letters. Term counts across letters measure mentions. The final rule is not public, so this report says what it needs to answer and cannot say how it answers. This report is analysis and is not legal advice.
Data files.Typed comments by channel (9 rows). Forecast log (4 rows). The position and sender type of each attached letter and the coding of the 120 sampled personal comments are available on request; names and IDs of individuals are withheld. PDF of this report.
Appendix
Documents cited
Agency.91 FR 9932, Department of Labor, proposed rule. OIRA review of the final rule, RIN 1235-AA46, concluded October 28, 2026. Ex parte notices 16509, Direct Selling Association members, Mar. 4, 2026, and 16508, SBA Advocacy roundtable, Apr. 9, 2026.
Supporting.11602 Small Business & Entrepreneurship Council, 15202 DoorDash, 16242 Instacart (Maplebear), 16486 Uber, 16487 Lyft, 16493 U.S. Chamber of Commerce, 16232 Financial Services Institute, 16246 Owner-Operator Independent Drivers Association, 15001 Institute for the American Worker (with changes), 16455 National Taxpayers Union, 16490 Chair and members, Senate HELP Committee.
Opposing.16483 AFSCME, 15503 AFL-CIO, 16239 Ranking members, House Education and Workforce Committee, 15309 Comptroller of Maryland, 16473 New York City Comptroller, 16477 Allegheny County, Baltimore, Santa Clara County, San Francisco, 15000 Farmworker legal services coalition, 16496 36 women's, caregiving and labor organizations, 6431 Mechanical Contractors Association of America.
Legal standards. Motor Vehicle Manufacturers Ass'n v. State Farm, 463 U.S. 29, 43 (1983); Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024); 5 U.S.C. § 553(c).
About this report
Who made it, and how to correct it
Authors. Vanessa Panitz and John Panitz, ComtIQ. The collection runs on the Rulemaking Observatory.
Funding and independence. No client, funder or party to the rulemaking paid for or reviewed this report before release. ComtIQ takes no position on the rule. We report who commented, what each side argued and what the final rule will need to address.
Next. When the final rule is published, ComtIQ will release a response audit that sets each argument in this report against the Department's answer.
Corrections. If a number or quote is wrong, tell us through comtiq.com. We fix errors in a new version and list each change in the version history.
Version history. 1.0, October 22, 2026, first release. 1.1, October 22, 2026, after internal review. 1.2, October 23, 2026, after external review. 1.3, October 25, 2026, added the row on multi-state employers. 1.4, October 25, 2026, added confidence ratings and what would change each view to the scenarios, and a forecast log. 1.5, October 31, 2026, first online edition with a source panel for every number; status updated for OIRA's conclusion of review on October 28; data links that pointed to files never published replaced with the published channel table and forecast log; note on the two counts of portable benefits and safe harbor requests clarified; note 6 recounted, adding the 303 copies of the largest financial template that open with a line of their own. 1.6, November 4, 2026, two status lines updated after OIRA concluded its review; data and findings unchanged.