The Office of Federal Contract Compliance Programs (OFCCP) adopted the Darden 1 factors in 2014, to assist federal contractors in determining whether certain types of employees should be included in a federal contractor’s Affirmative Action Plan. While these factors do shed some light on determining whether someone is an employee or a contractor, it has limited application for positions held by students at academic institutions. This article will discuss the origin of the Darden factors and how they are applied, the history behind OFCCP’s adoption of their use, and the perspective of the Department of Labor’s (DOL) Wage and Hour Division, in light of a National Labor Relations Board (NLRB) case which has provided more confusion than clarity.

The Origin of the Darden</