Worker Classification in 2026: Advising and Defending While DOL’s New Rule Is Still Only Proposed

John S. Ho, Co-Chair | Cozen O’Connor

John S. Ho exclusively represents employers in labor and employment matters, with extensive experience in wage and hour matters under the Fair Labor Standards Act, New York Labor Law, and other federal and state employment laws. He regularly defends employers in hybrid class and collective actions involving exemption misclassification, off-the-clock work, rounding claims, tip credits and pooling, wage deductions, and regular-rate issues. He also assists companies with internal wage and hour audits and Department of Labor audits, including audits arising from the misclassification of independent contractors. As co-chair of Cozen O’Connor’s OSHA-Workplace Safety Practice, John also advises employers on workplace safety and health matters and OSHA investigations and enforcement.

• Education & Credentials

John earned his J.D., cum laude, from St. John’s University School of Law in 1997 and his B.A. from the University of Connecticut in 1992. He is admitted to practice in New York and Connecticut and before the U.S. District Courts for the Eastern, Northern, Southern, and Western Districts of New York.

• Recognition & Leadership

John has been named to the New York Metro Super Lawyers list since 2013 and to The Best Lawyers in America since 2019. In 2025, he was elected as a Fellow of the College of Labor and Employment Lawyers. He has also been recognized as an Avetta Fellow. John has held numerous leadership positions within the American Bar Association Labor and Employment Law Section, including Management Vice-Chair and Chair of the Diversity and Inclusion in the Legal Profession Committee and employer co-chair of the Section’s Diversity, Equity & Inclusion track. He also served on the board of the Connecticut Asian American Bar Association for more than a decade and is co-chair of Cozen O’Connor’s Asian Attorney Resource Group.

• Professional Involvement

John is a founding member of the Wage and Hour Defense Institute and frequently lectures on the FLSA, OSHA, and Department of Labor audits before organizations including the American Bar Association, New York State Bar Association, New York City Bar Association, Practising Law Institute, LawLine, and EHS Today. He has served as a contributing editor to The Fair Labor Standards Act, Cumulative Supplement, published by BNA Books, since 2002 and on its editorial board since 2006. He is also a chapter editor for Occupational Safety and Health Law, published by the ABA and Bloomberg Law, and has served on the Advisory Board of Thomson Reuters Practical Law’s Labor & Employment Service. John is the author of Cozen O’Connor’s OSHA Chronicle and has taught business and employment law at the Pratt Institute and The New School.

• Experience

As a former trial attorney with the U.S. Department of Labor, Office of the Solicitor, John prosecuted numerous FLSA and OSHA cases and was part of a litigation team that recovered approximately $4 million under the FLSA on behalf of New York State Environmental Conservation Officers. He also received a commendation from OSHA’s regional administrator for prosecuting a discrimination complaint under the Surface Transportation Assistance Act. In private practice, John has defended employers in FLSA and state wage-and-hour litigation, including hybrid class and collective actions involving misclassification, exemption issues, off-the-clock work, and rounding claims. He conducts internal wage-and-hour audits and assists employers responding to Department of Labor audits, including audits involving independent-contractor classification. His broader practice includes OSHA investigations and citations, workplace safety and health audits, employment policies and agreements, noncompetes, workplace investigations, and proceedings before federal and state employment agencies.

Matthew A. Brown, Partner | Thompson Coburn LLP

Matthew A. Brown is a partner in Thompson Coburn LLP’s New York office who focuses his practice on labor and employment law and represents employers across a wide range of industries, including food service, building service, construction, transportation, automotive, trucking, retail, and warehousing. He combines proactive employment counseling with strong defense when disputes arise. His experience includes complex employment litigation, class and collective actions, wage and hour disputes, discrimination and harassment claims, breach of contract matters, and restrictive covenant disputes. He also advises management on day-to-day employment issues, including employment agreements, employee handbooks, and employee discipline.

• Education & Credentials

Matthew earned his J.D. from Hofstra University School of Law in 2010, where he was a member of the Hofstra Labor & Employment Law Journal. He received his B.A. in Economics from the University of Michigan in 2007. He is admitted to practice in New York and before the U.S. District Courts for the Eastern, Northern, and Southern Districts of New York and the U.S. Court of Appeals for the Second Circuit.

• Recognition & Leadership

Matthew A. Brown is recognized for his employer-focused labor and employment practice, representing businesses across a broad range of industries in complex wage and hour, employment litigation, and workplace matters. He is active in the New York State Bar Association, American Bar Association, New York County Lawyers’ Association, and Nassau County Bar Association. He also maintains a strong employer-side educational presence through his “The Bosses Lawyer” platform, where he provides practical guidance on wage and hour compliance, workplace policies, and emerging employment-law developments.

• Professional Involvement

Matthew regularly follows and analyzes developments affecting employers, including guidance from the U.S. Department of Labor and emerging workplace issues involving wage and hour compliance. His recent commentary has addressed DOL guidance concerning compensability of home-to-work travel and the intersection of climate change and FMLA leave. Through his “The Bosses Lawyer” platform, he translates developing employment-law issues into practical guidance for business owners and management professionals.

• Experience

Matthew counsels corporate clients and defends employers in complex labor and employment matters, including class and collective actions and claims involving wage and hour violations, discrimination, harassment, breach of contract, and restrictive covenants. His experience extends across federal and state trial and appellate courts and administrative agencies, including the U.S. Equal Employment Opportunity Commission, New York State Division of Human Rights, New York City Commission on Human Rights, U.S. Department of Labor, and New York State Department of Labor. He also provides day-to-day employment counseling and advises management on employment agreements, employee handbooks, employee discipline, and other workplace matters.

SESSION 1 – Understanding DOL’s Proposed 2026 Independent Contractor Rule | 12:00pm – 1:00pm

The determination of whether an individual is an employee or independent contractor has challenged businesses for decades. The complexity of the analysis has been exacerbated by various agencies applying different tests and/or changing the factors used in the determination.

On February 26, 2026, the United States Department of Labor (DOL) once again proposed a new Rule revising its analysis for distinguishing between employees and independent contractors under the Fair Labor Standards Act and suspending enforcement of the current 2024 six factor Rule. The proposed Rule large restores the 2021 independent contractor final Rule issued during the first Trump Administration. This session will review the proposed Rule and discuss the two “core” factors that carry the most weight. The session will also discuss best practices for businesses on how to address concerns that private plaintiffs may still rely on the 2024 Rule while DOL’s interim enforcement policy is in effect. Attorneys will also learn practical steps on how to structure these relationships to support independent contractor status including contractual terms that support or damage independent contractor status and penalties associated with misclassification. Upon completion, attendees will be able to identify high-risk relationship and advise on restructuring versus reclassification.

BREAK | 1:00pm – 1:10pm

SESSION 2 – Defending Misclassification Claims and Audits in the Dual-Standard Window | 1:10pm – 2:10pm

This session equips defense-side practitioners to navigate worker misclassification claims and government audits during the period when two competing federal standards are simultaneously operative: the 2024 DOL Final Rule and the pre-rule economic reality framework reinstated by FAB 2025-1. Attorneys will learn how to calibrate defense strategy based on forum, build a contemporaneous record supporting classification decisions, assess willfulness and liquidated damages exposure, and manage enforcement risk across ABC-test states where federal enforcement shifts have no effect.