Paul DeCamp Quoted in “Biden's 2021 Wage and Hour Report Card”

President Joe Biden's pro-worker agenda has drawn praise from plaintiffs attorneys, but they hope for more action on issues such as increasing minimum wage and banning mandatory arbitration. Meanwhile, the management side doesn't see much of an impact yet from the president on the wage and hour landscape. Biden campaigned on a platform that included increasing the federal minimum wage, establishing a federal worker classification standard and banning mandatory arbitration, among other proposals. Nearly a year into his term, Biden has moved forward on some issues, but more action is needed, worker attorneys said. …

But outside of rolling back policies from President Donald Trump's administration, Biden "has not by and large imposed a new policy stamp on wage and hour law," said Paul DeCamp of management-side firm Epstein Becker Green, who served as an administrator of the U.S. Department of Labor's Wage and Hour Division under President George W. Bush.

As Biden approaches the end of his first year in office, Law360 explores his administration's progress on its stated wage and hour priorities.

Still Waiting to Follow California's ABC Test

Biden's platform said he would fight misclassification of workers as independent contractors, who often lack benefits and protections mandated for employees, such as minimum wage and overtime pay. He planned to do this in part by working with Congress to establish a federal standard based on ABC worker status tests in states such as California.

California's test, codified in Assembly Bill 5, comes from the state Supreme Court's 2018 holding in Dynamex Operations West Inc. v. Superior Court. Under the test, workers are considered employees unless a hirer shows the worker is free from control, performs work separate from the hirer's usual business, and independently does work of the same nature as the services performed for the hirer.

Nearly a year into the Biden administration, a federal classification standard remains to be seen. The Biden-backed Protecting the Right to Organize Act, or PRO Act, proposed an ABC test for labor relations law, not wage and hour law, but even that bill has failed to advance in the Senate.

On the regulatory front, the Biden DOL withdrew a Trump-era independent contractor rule but has not replaced it with a new regulation. …

DeCamp of Epstein Becker Green also said a federal standard seems unlikely.

"Increasingly it appears that that's not going to materialize," DeCamp said. "I don't see Congress wanting to tie up scarce legislative resources taking on that fight right now, especially when people are getting ready to go into midterms and something like this could be fodder for campaign ads."

Still Waiting on a Wage Chief

The DOL's Wage and Hour Division has operated for nearly a year under Biden without a Senate-confirmed leader, though the division has gone even longer without one during previous administrations.

Biden nominated David Weil in June to return to the administrator post he held during the Obama administration. But a Senate Committee on Health, Education, Labor and Pensions vote on Weil in August resulted in a tie, meaning the Senate majority or minority leader would have to bring a motion to discharge the panel from further consideration of the nomination.

Neither of the leaders has brought the discharge motion. Under procedural rules, unconfirmed nominations typically return to the president when a Senate session ends, with some exceptions. The president then can renominate the person, pick someone new or make a short-term recess appointment.

Going without a Senate-confirmed leader isn't unusual for the division, which has had just three Senate-confirmed administrators in the past 20 years, and only seven in the last 40.

"Historically, the Wage and Hour administrator, especially over the last 30 years or so, has been a particularly challenging position to get through the Senate because the interest groups have taken such an active interest in this," said DeCamp, who held the role under Bush.