The Biden administration’s wage arm is following through on its promise to police worker misclassification, but some opponents of the stricter approach say the enforcement spree could weaken an argument for a new rule on the issue.
The US Labor Department’s Wage and Hour Division has touted six cases since May that collectively found nearly 1,000 workers who were wrongly labeled as independent contractors when they should have been classified as employees.
At the same time, the DOL has been working on a new regulation to outline how it will define who is an independent contractor or employee under federal wage law—a change Labor Department officials say is needed to help better combat worker misclassification. …
But some attorneys and former DOL officials are skeptical the string of misclassification cases from the WHD would weaken the agency’s justification for the new rule.
“I think that may be a measure of wishful thinking, the idea that because the department has been conducting enforcement, asserting misclassification of employees as independent contractors, that somehow means they really won’t need a new rule,” said Paul DeCamp, a Wage and Hour administrator during the George W. Bush administration.
“What I’m sure the department would say today is ‘yes, we can police this issue of independent contractor versus employee, regardless of what rule we have, but we can police it more effectively if we have a rule we like,’” he said. “And then from this department’s perspective under this administration, they want to be able to cast the net of employment more broadly than under the Trump-era rule.”