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 “Where 4 Wage Rules Stand Halfway Through 2025,” by Irene Spezzamonte. (Read the full version – subscription required.)
Following is an excerpt:
Some Biden-era wage and hour rules that remain on the books face uncertain futures six months into 2025 in President Donald Trump's new term, with attorneys predicting that the administration will. ...
Even without the official steps to rescind that rule, "the smart money is on the assumption that the Biden-era independent contractor rule is going away," Paul DeCamp of management-side firm Epstein Becker Green said.
DeCamp, who was the DOL Wage and Hour Division administrator under former President George W. Bush, said it is likely that the current Trump administration could return to the independent contractor rule that the first Trump administration released, which emphasized workers' control over their work and their ability for profit or loss as a result of personal investment.
DeCamp added that although Republicans introduced a bill that would amend the FLSA and introduce a stricter independent contractor test, he is not expecting that to draw an agreement from both sides of the aisle because "that's an area that's proven pretty difficult to get legislative consensus."
In December, the DOL proposed a rule that would end the subminimum wage program under the Fair Labor Standards Act, which allows employers to pay workers with disabilities less than the $7.25 federal minimum wage. …
However, keeping the rule in a proposed status might be tricky because the next administration "could technically piggyback on the existing proposed rule" and make its own changes final, DeCamp explained.
DeCamp said something similar happened in 2011 when the Bush administration didn't finalize a proposed rule determining whether salaried, nonexempt employees who received bonuses could still be paid under a fluctuating workweek method.
When former President Barack Obama took office, his administration finalized the rule without needing to go through the notice-and-comment process and took it in the opposite direction, nixing the fluctuating workweek for salaried, nonexempt employees who also pocketed commissions or bonuses, DeCamp said.
That move created confusion — and litigation — pushing employers to walk away from classifying workers as salaried, nonexempt employees, DeCamp added.
DeCamp said in order to prevent that from happening again with the proposed subminimum wage rule, Trump's administration would have to issue a final rule keeping the program in place.
"If you don't close out the existing rulemaking," DeCamp said, "then it allows another administration down the road to simply go issue a final rule based on the record developed during the prior notice-and-comment period."
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