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 Must Live with Trump Contractor Rule, for Now,” by Jon Steingart. (Read the full version – subscription required.)
Following is an excerpt:
A Texas federal judge's ruling this week that reinstated the Trump administration's independent contractor rule is unlikely to be the last word on the standards used for classifying workers, attorneys told Law360.
U.S. District Judge Marcia A. Crone on Monday found that President Joe Biden's administration botched its unwinding of its predecessor's rule. As a result, she held that the independent contractor rule that the U.S. Department of Labor issued in the final days of former President Donald Trump's administration has been active since March 8, 2021, the original date when it was supposed to come into effect.
The rule, which the DOL's Wage and Hour Division finalized two weeks before Trump's last day in office in January 2021, establishes two primary factors for determining whether a worker is an employee or an independent contractor under the Fair Labor Standards Act. Three more factors can help with the analysis if the main prongs don't provide a clear answer. …
DOL Has Options for Its Next Steps
Paul DeCamp, a member of Epstein Becker Green who advises employers as co-chair of the firm's wage and hour practice group, said companies shouldn't count on Judge Crone's ruling being the final word. The DOL could appeal it to the Fifth Circuit or use it as a road map for a new rulemaking process to withdraw the independent contractor rule that would pass judicial muster.
The DOL under Biden might even try to write its own independent contractor rule, he added. DeCamp served as Wage and Hour Division administrator under former President George W. Bush.
"What I say to clients now in light of this ruling is be prepared for anything," he said. "Be prepared for the Trump administration's final rule to become law, but don't necessarily put all your eggs in that basket."
"The court's ruling this week is a very interesting and perhaps a bit surprising development in this saga, but the story's not over yet," he said. "Until more of the litigation is played out, I'd say don't do too much in reliance on it and be prepared for the Department of Labor to conduct further rulemaking."
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