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 Cry Foul on DOL Messaging for Trump Gig Worker Rule,” by Rebecca Rainey and Diego Areas Munhoz. (Read the full version – subscription required.)
Following is an excerpt:
Republicans and management-side attorneys are alleging the US Department of Labor is ignoring a Trump-era independent contractor standard that’s more favorable to businesses, despite a court saying the rule takes precedence.
The DOL’s Wage and Hour subagency’s website describes how it approaches worker misclassification, but some say that language doesn’t make clear that the agency’s current regulations say businesses should use a five-factor test to determine who is an employee protected under federal wage laws.
The DOL’s website does link to a federal register notice of the Trump rule, but provides guidance and graphics that outline a seven-part test to determine a worker’s status. In response to a request for comment, the DOL said it has no guidance for businesses on how to apply the Trump standard.
That conflicting guidance forces employers to rely on a handful of past court precedents and worker classification tests, according to management side attorneys and a former official. Trucking, construction, and on-demand app services that depend on contractors to run their operations say their business models would be destroyed if they were on the hook for the tax and legal liabilities that come with hiring employees. …
Compliance Concerns Overblown
Others say the Biden administration’s failure to provide guidance on how to apply the Trump rule makes sense, given the expected changes coming from the DOL’s forthcoming rule.
Former Wage and Hour Administrator Paul DeCamp noted that it wouldn’t be unusual, as a matter of agency operations and resource allocation, for the department to not invest heavily in training on the Trump standard “given the expectation at the department that that standard is going to be short lived and will be replaced by something else.”
The approach “is perhaps irritating to the business community,” said DeCamp, now a management-side attorney with Epstein Becker & Green PC. “But beyond that, I don’t think it has much significance.”
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