May 22, 2025

LABOR UPDATES YOU NEED TO KNOW

Employee vs. Independent Contractor



The United States Department of Labor Wage and Hour Division (the “Division”) issued on May 1, 2025, a Field Assistance Bulletin (the “Bulletin”) providing guidance on how to determine employee or independent contractor status when enforcing the Fair Labor Standards Act (the “FLSA”). While this Bulletin is potentially significant in some states, it will not impact the operations of New York State-based employer obligations – including New York-based CHHAs, LHCSAs, hospices and managed long-term care plans (collectively, “Agencies”) given that more stringent New York State case law will continue to control whether a person is properly classified as an employee or independent contractor. 

On matters of independent contractor classification, Agencies should continue to follow New York case law, which continues to require consideration of the following four elements: (1) whether the principal (employer) retains the power to select and engage the servant; (2) the principal’s methods of payment for services rendered by the servant; (3) whether the principal has the power to dismiss the servant; and (4) the extent of the principal’s power of direction and control over the servant’s activities. The right to control is the key factor in this determination. 

Read more here.

Changes to I-9 Form

In response to recent Trump Administration actions, the U.S. Citizenship and Immigration Services has made minor changes to Form I-9, Employment Eligibility Verification, to align with statutory language, and updated the DHS Privacy Notice. The revised Form I-9 with an edition date 01/20/25 and an expiration date 05/31/2027 is now available for download, while multiple previous editions remain valid until their respective expiration dates: 



• Form I-9 (08/01/23 edition) that is valid until 05/31/2027 

• Form I-9 (08/01/23 edition) that is valid until 07/31/2026 (Employers using this form must update their electronic systems with the 05/31/2027 expiration date by July 31, 2026.) 

Key updates include:

• Renaming the fourth checkbox in Section 1 to “An alien authorized to work” 

• Revising the descriptions of two List B documents in the Lists of Acceptable Documents 

• Adding appropriate statutory language and a revised DHS Privacy Notice to the instructions 

• Starting April 3, 2025, E-Verify and E-Verify+ will have updated the Citizenship Status selection during case creation to reflect this statutory language. The selection “A noncitizen authorized to work” will be updated to “An alien authorized to work.” 

Employers should note: 

• If an employee attests on Form I-9 as “A noncitizen authorized to work,” the employer must select “An alien authorized to work” in E-Verify. 

• E-Verify cases will display "An alien authorized to work," while employees and employers may continue to see "A noncitizen authorized to work" on Form I-9, depending on the form edition being used. 

• E-Verify+ participants will see the updated 01/20/25 edition date and 05/31/2027 expiration date reflected in Form I-9NG.