Is it legal for the app to call me an independent contractor?
Published September 10, 2026
The short answer
Calling a driver or courier an independent contractor does not, by itself, settle whether they are one. The Department of Labor states that “what the worker is called is not relevant”, and that “agreeing verbally or in writing to be classified as an independent contractor — including by signing an independent contractor agreement — does not make a worker an independent contractor under the FLSA”. The question turns on the economic realities of the whole working relationship instead.
This is the question the answer engines get most confidently wrong, and the confident answer is that the agreement decides it. The Department of Labor’s own fact sheet says the opposite in a single paragraph, and lists the other things that do not decide it either.
It is also the question where the federal position is genuinely moving. That is set out further down rather than hidden, because a page that quotes a test without saying the test is being rewritten is telling half of it.
Does signing the agreement settle it?
No, and the fact sheet is unusually direct about the whole family of things that look decisive and are not — the title, the tax form, the signature, where the work is done, and how the money arrives.
“What the worker is called is not relevant—a worker may be an employee under the FLSA regardless of the title or label they are given. A worker who is paid off the books or receives a 1099 is not necessarily an independent contractor and agreeing verbally or in writing to be classified as an independent contractor—including by signing an independent contractor agreement—does not make a worker an independent contractor under the FLSA.”
What is the economic reality test?
It is a set of factors weighed together, with no single one deciding the outcome. The fact sheet names six and says explicitly that none of them outranks the others.
Read down that list as a driver and the ones that bite are control and opportunity for profit — who sets the price, who decides which jobs appear, and whether working more hours at a fixed rate per job is really a business decision or just more hours.
“All factors should be considered. No single factor determines a worker’s status, and no one factor or combination of factors are more important than the other factors. Instead, the totality of the circumstances of the working relationship should be considered.”
What does “control” mean when the supervision is an app?
The fact sheet answers that one explicitly, and the parenthesis is the part worth noticing: supervision by software counts as supervision.
“Relevant facts include whether the potential employer: controls hiring, firing, scheduling, prices, or pay rates; supervises the performance of the work (including via technological means); has the right to supervise or discipline workers; and takes actions that limit the worker’s ability to work for others.”
Is the federal test changing?
Yes, and anyone reading about this should know it. The fact sheet carries two notices of its own: one about litigation over the rule it describes, and one about a proposed replacement.
The practical effect for a reader is that the answer to “which version of the test applies to me” is not settled today, which is a reason to keep a record of how the work actually ran rather than to wait for the question to resolve.
“This Fact Sheet is consistent with the 2024 Rule entitled Employee or Independent Contractor Classification Under the Fair Labor Standards Act, 89 Fed. Reg. 1638 – the legality of which is the subject of current litigation – that remains in effect for purposes of private litigation. Please see Field Assistance Bulletin 2025-1 (May 1, 2025) regarding the Wage and Hour Division’s current enforcement position.”
What is worth writing down while that is unsettled?
The things the factors ask about, as they happen. Whether jobs could be declined without consequence. Whether the rate was ever negotiable. What the app did when a job was refused. How the hours were set, and by whom.
None of that is recoverable a year later from a statement, because a statement records what was paid rather than how the work was run. It is the second one the test asks about.
Where this is decided
U.S. Department of Labor, Wage and Hour Division
Ask the Wage and Hour Division whether the hours or the deduction described are covered where the work was done. Contacting them does not require an attorney, and the division investigates complaints itself.
Contact detailsSources read for this answer
- Fact Sheet 13: Employee or Independent Contractor Classification Under the Fair Labor Standards Act (FLSA)
U.S. Department of Labor, Wage and Hour Division · Revised March 2024 · read September 10, 2026
https://www.dol.gov/agencies/whd/fact-sheets/13-flsa-employment-relationship
What can be done about it
About this answer
What is written above is general information about a rule that exists. It is not written about anybody's particular job.
It does not say what any particular employer owes anyone. That turns on facts this page has never seen — the hours, the agreement, the state the work was done in — and on how somebody with the authority to decide reads them.
Rules differ from one state to the next, and they change. Every quotation above says what that document said on the date printed beside it, which is not the same as saying what it says today.
Where anything on this page and the official source disagree, the official source is the one that counts. The office named further up decides; this page only points at it.
Whichever way that goes, the thing an agency, a union or an attorney asks for first is a dated record of what actually happened, written down while it was happening.
Keep your own record of it
The test above turns on how the work actually ran rather than on what the agreement calls it — who set the hours, what happened when a job was refused, whose money paid for the car and the phone. A platform statement records none of that. Dated notes, made as it happens, are the only place it exists.
Start a record of the drivingFree to start, and no account until you choose to keep it. Private to you — nobody is contacted or notified.