Paul DeCamp Quoted in “Biggest Wage and Hour Regulations and Legislation of 2020”

Law360 Employment Authority

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 “Biggest Wage and Hour Regulations and Legislation of 2020,” by Mike LaSusa. (Read the full version – subscription required.)

Following is an excerpt:

It’s been an eventful year in the U.S., and the regulatory and legislative landscape for wage and hour issues has been no different, from increasing complexity around classifying workers to shifting rules about who must be paid tips, among other things.

Here, Law360 takes a look at four of the biggest wage and hour developments in the regulatory and legislative space in 2020.

DOL Moves To Ease Contractor Classification

The U.S. Department of Labor shook up the employment law world in September when it unveiled a long-awaited proposed rule that would make it easier for companies to classify workers as independent contractors.

Independent contractors aren't entitled to many legal protections and benefits that are mandated for employees, like minimum wage and overtime pay, paid sick time and family leave, and the right to unionize.

The DOL's proposal lays out a five-factor "economic reality" test that emphasizes two core factors: whether a worker is in business for themselves, meaning they're an independent contractor, or is economically dependent on a putative employer for work, meaning they're an employee. …

Although the rule hasn't been made official yet, that's likely to happen before the end of President Donald Trump's term in office, said Paul DeCamp, a partner at Epstein Becker Green who formerly served as administrator of the DOL's Wage and Hour Division.

"I suspect that the department is working very hard to review comments and to finalize it and get it out the door," he said.

California Cuts Gig Workers Out Of Employment Test

Gig companies won a big battle in the nationwide fight over the future of employment classification with the November passage of California ballot initiative Proposition 22. The legislation exempts Uber, DoorDash and certain other gig economy businesses from the state's landmark worker classification law known as A.B. 5.

DeCamp called the Prop 22 vote "ironic" since A.B. 5 was intended in large part to make it harder for gig companies to classify workers as independent contractors

"What gets left over after the voters have spoken in California is kind of a Swiss cheese, where the holes in the law really don't reflect what the original intent behind the law was," he said. …

Joint Employer Rule Put On Hold

Another eagerly anticipated rule was finalized early in 2020 that revised the DOL's test for when two employers bear joint blame for shorting workers on pay.

The so-called joint employer rule asked courts to use a four-part test to decide whether two linked firms jointly employ a group of workers. The factors were whether a business can hire or fire employees, whether it controls their schedules or conditions of employment to a substantial degree, whether it determines workers' pay rates and the methods by which they are paid, and if it maintains workers' employment records.

However, a New York federal judge ruled in September that the DOL strayed too far from court interpretations of what it takes to be considered a joint employer under the FLSA.

In the wake of the ruling, employment attorneys told Law360 that the issue is likely to be resolved in an appeals court.

Although the Trump administration has sought to upend the district court's decision at the Second Circuit, President-elect Joe Biden's victory in the November election could spell doom for the regulation, said DeCamp of Epstein Becker Green.

"I think when we talk about next year, it remains to be seen whether an incoming Biden administration will pursue that appeal," DeCamp said.