Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in the Bloomberg Law Daily Labor Report, in “Businesses Seek Speedy Legal Fight Over New DOL Gig Worker Rule,” by Rebecca Rainey.

Following is an excerpt:

Business groups opposed to the US Department of Labor’s latest independent contractor rule have taken an unusual procedural move in an effort to expedite their challenge against new legal interpretations set to go into effect in March.

A coalition of business groups—representing dozens of industries including gig economy companies Uber Technologies Inc. and DoorDash Inc.—opted to forego a new lawsuit against the worker classification rule released Jan. 9. Instead, they filed a motion Jan. 11 to revive previous litigation involving a different Biden administration independent contractor rule that was issued in 2021.

While the 2021 rule, which was blocked by a Texas federal court in 2022, and the independent contractor rule released last week are slightly different, they both would cancel a Trump-era standard that put in place a more business-friendly approach for determining whether a worker should be classified as an employee or contractor under federal wage law. …

Friendlier Venue

The motion by the business coalition to revive the prior independent contractor rule challenge was filed in the US Court of Appeals for the Fifth Circuit where the case has been stayed while the Labor Department developed its most recent regulation.

Specifically, the coalition asked the Fifth Circuit to send their case back to the US District Court for the Eastern District of Texas to review their concerns with the new rule. That lower court previously sided with the business groups’ Administrative Procedure Act claims against the 2021 independent contractor rule. …

Paul DeCamp, a former Wage and Hour administrator under President George W. Bush, who is now a management-side attorney with Epstein Becker & Green PC, said it appears businesses are trying to argue the two rules are “legally and factually similar” enough to continue the existing litigation.

“The motion references the arguments that we expect the plaintiffs to make, in terms of the criticism of the current rule, mirroring some of the reasons why the district court rejected the earlier rule,” he said. “But I think it remains to be seen what the district court’s going to do with the case.”

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