7 Wage and Hour Issues to Watch Under Biden

Law360 Employment Authority

Paul DeCamp and Michael S. Kun, Members of the Firm and co-chairs of the firm’s national Wage and Hour practice group, in the firm’s Washington, DC, and Los Angeles offices, respectively, co-authored an article in Law360 Employment Authority, titled “7 Wage and Hour Issues to Watch Under Biden.” (Read the full version – subscription required.)

Following is an excerpt (see below to download the full version in PDF format):

Last week saw the inauguration of our 46th president. 

Although perhaps not at the very top of the list of questions about the Biden administration, these two questions have to be somewhere on the list: What changes will we see in wage and hour law? And will the policies of former President Donald Trump remain in place?

Of course, it is not unusual for a new administration, with a newly appointed secretary of labor, to reverse — or refuse to enforce — the prior administration's policies.  

Indeed, it was just four years ago that the new administration's U.S. Department of Labor abandoned the Obama administration's DOL rule that would have increased the salary threshold for most white collar exemptions under the Fair Labor Standards Act, or FLSA, from $23,660, or $455 a week, to $47,476, or $913 a week.

Eventually, the new DOL raised the salary threshold for most white collar exemptions to $35,568. 

And eight years earlier, the former President Barack Obama's incoming administration withdrew close to two dozen wage and hour opinion letters issued in the final days of the George W. Bush administration — most of which the Trump DOL eventually restored.

There are a number of issues that the administration of President Joe Biden and a new DOL may focus on at some point during the next four years, be it through legislation, new rules implemented by the DOL or even executive orders. 

These issues may include the following.

  1. An Increase in the Federal Minimum Wage
  2. Abandoning the DOL's New Independent Contractor Test
  3. Adoption of a new Test for Independent Contractor Status — Perhaps One Based on California's Controversial A.B. 5
  4. Rejecting the DOL's new Tip Pooling Rule
  5. Raising the Salary Threshold for White Collar Exemptions
  6. Not Defending the DOL's Joint Employer Rule in Court
  7. Amending Federal Laws to Preclude Class and Collective Action Waivers