Hunton Employment & Labor Perspectives

In a recent post, we wrote about a final rule issued by the Department of Labor (DOL) during the last days of the Trump administration addressing the appropriate test for classifying independent contractors under the FLSA. In the post, we noted that the future of the rule was in question because it was not set to go into effect until March 8, 2021. This delayed implementation provided an opportunity for the incoming Biden administration to freeze or withdraw the rule.

As many predicted, President Biden requested the DOL freeze the implementation of the final rule pending further agency review on January 20, 2021. The final rule will therefore not go into effect on March 8, 2021, and will likely never go into effect during a Biden administration.

The Biden DOL also withdrew several employer-friendly opinion letters that were issued in the last days of the Trump administration. One opinion letter of particular note that was withdrawn addressed whether a motor carrier requiring an independent contractor to abide by certain safety rules would jeopardize their independent contractor relationship. The Trump DOL determined that, under the test set forth in the now frozen final rule, requiring adherence to safety rules would not affect independent contractor status.

We expect the Biden administration to continue to roll back many the changes instituted by the previous administration. We will provide updates as those roll backs occur.