Friday, June 9, 2017

Easy come, easy go - DOL pulls independent contractor and joint employer guidance

On Wednesday, the U.S. Department of Labor released the following press release:
Not official use.
U.S. Secretary of Labor Alexander Acosta today announced the withdrawal of the U.S. Department of Labor’s 2015 and 2016 informal guidance on joint employment and independent contractors. Removal of the administrator interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law. The department will continue to fully and fairly enforce all laws within its jurisdiction, including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.
Technically, this does not change the law; however, courts will give some deference even to "informal guidance." As compared to the now-pulled guidance, the Trump administration will most likely:

  • View classification in a way that makes workers more likely to be independent contractors; and
  • Makes putative-employers less likely to be "joint employers."
So far, no specific replacement guidance has been proposed. Also, unlike informal guidance, actual agency decisions have a little more staying power. For example, on NLRA issues, employers are still stuck with the "refined" joint employer standard from Browning-Ferris.