- The U.S. Department of Labor said last week it plans to revisit independent contractor regulations and it has asked employers to participate in a June 24 forum on the topic.
- The agency’s acting wage and hour administrator said that while DOL remains committed to ensuring employees are properly classified, “we recognize the important role legitimate independent contractors play in our economy. We need to hear from workers and employers as we develop our proposal.”
- Employers can register for the forum online. A separate forum for workers is scheduled for June 29.
The Trump administration loosened rules on independent contractor classification just before leaving office, but the Biden administration pulled that change back before it took effect. In March, however, a federal district court judge ruled that the rescission violated federal law because it failed to comply with notice-and-comment requirements for rulemakings; this put the Trump-era rule into effect.
That left Biden’s DOL with two options, attorneys previously said: appeal the ruling or pursue the desired changes via formal rulemaking. DOL may be pursuing both paths. It filed a notice of appeal with the 5th U.S. Circuit Court of Appeals and made clear in last week’s announcement that it “now plans to engage in rulemaking on determining employee or independent contractor status under the FLSA.”
DOL has not made public its plans for this rulemaking, but earlier efforts were aimed at rolling back the Trump administration’s prioritization of two factors — the nature and degree of workers’ control over their work and the opportunity for profit or loss — in determining whether a worker is an employee or an independent contractor. Biden’s DOL previously took the position that a broader, multifactor test is required and that employers must consider the totality of the circumstances.