Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in Law360 Employment Authority, in “Biden's 2022 Wage and Hour Report Card,” by Max Kutner. (Read the full version – subscription required.)

Following is an excerpt:

President Joe Biden pursued his pro-worker wage and hour agenda during his second year in office by using rulemaking to address independent contractors and prevailing wages, but the administration saw less progress on issues that require congressional approval, such as increasing the federal minimum wage. In 2022, the Biden administration pursued rulemaking to overhaul how prevailing wages are calculated and how to determine if a worker is an employee or an independent contractor. But the federal wage floor remains at $7.25 an hour, and rulemaking to update the salary threshold for overtime appeared to be delayed.

Supporters of Biden's agenda said the administration did what it could with the resources it had and a slim Democratic majority in Congress. …

Here, Law360 explores how Biden did on his stated wage and hour priorities in 2022.

Independent Contractor Rule Proposed, but No ABC Test

Biden's 2020 campaign platform called for holding employers accountable for misclassifying workers as independent contractors, who often lack the benefits and protections required for employees.

Under Biden, the U.S. Department of Labor has sought to do this through enforcement. The agency hasn't released year-end enforcement numbers yet, but in 2022 it announced several multimillion-dollar recoveries, including $4.5 million for 503 home health aides, $7.2 million for 1,105 staffing agency nurses and nursing aides, and $3.3 million for 3,964 federal subcontractor workers.

Besides enforcement actions, the DOL's Wage and Hour Division proposed a rule in October that would establish a six-step economic realities test for determining if a worker is an independent contractor or an employee. The public comment period closed Dec. 13. …

But the proposed rule doesn't establish an ABC worker classification test. Biden's campaign platform had included working with Congress to establish such a test.

Instead, the proposal is similar to independent contractor guidance under former President Barack Obama, said Paul DeCamp of management-side firm Epstein Becker Green, who led the Wage and Hour Division under former President George W. Bush.

"It's fair to say that the Biden administration has made progress toward restoring the status quo ante from before the Trump administration," DeCamp said. "Beyond that, they haven't really gotten much done on this issue. There's been no progress toward an ABC test as a broad proposition of federal law." …

Only Federal Workers Get $15 Floor

Biden has voiced support many times for raising the federal minimum wage to $15 an hour. While it would take Congress to raise the floor for all workers under the Fair Labor Standards Act, Biden has used his executive authority to try to increase it for federal employees and federal contract workers.

The president had signed executive orders in 2021 laying the groundwork for such increases, and those wage hikes took effect in 2022, though the Tenth Circuit stayed the contract worker increase pending a challenge to a rule implementing the executive order.

"There is certainly a significant legal question about whether the president has the authority to increase the minimum wage in those ways, when there are statutes that provide for minimum wages in these settings," Epstein Becker Green's DeCamp said. …

Congress Tackles Arbitration, but Not for Wage Disputes

Biden's 2020 campaign called for an end to mandatory arbitration agreements in employment settings. In 2022, Congress addressed the issue, but not when it came to workers' wages and hours.

In February, the House and Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, which amended the Federal Arbitration Act to prohibit ​​employers from making workers go to arbitration for sexual harassment and assault claims. Biden signed the bill into law in March.

But other bills addressing mandatory arbitration failed to make it to the president's desk. …

But DeCamp said such a wholesale ban on arbitration isn't warranted.

"What we have is a recognition that arbitration agreements have value, that we're not going to throw the baby out with the bathwater," DeCamp said. "This was actually an area where compromise worked."

Wage Chief Confirmation Seems Likelier

Biden is closer to seeing his first Senate-confirmed Wage and Hour Division administrator, after the Senate Committee on Health, Education, Labor and Pensions in November voted to advance the nomination of Jessica Looman to the full chamber. …

"There doesn't seem to be a groundswell of opposition to her candidacy," DeCamp said.


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