Independent contractor and joint employer rules still unsettled

Since March 2021, when the Biden administration formally withdrew both the frozen Independent Contractor Regulation and the judicially rejected Joint Employer Regulation, employers, workers, and unions have been waiting for new administration proposals that would attempt to bring some clarity and stability to these hotly contested areas of employment law. The wait continues, and the situation grows more contested.

Independent contractor

The independent contractor issue remains the most active. Employer groups have formally challenged the withdrawal of the regulation in court, asserting the rescission violated the Administrative Procedures Act. This litigation threatens the viability of any new position the Biden Department of Labor (DOL) might adopt.

The rumored appointment of former Wage and Hour Administrator David Weil as the new administrator indicates an employee-friendly view, based on the premise that most workers are employees, is in the works.

This follows an activist trend among the states, notably California's Assembly Bill (AB) 5, which strictly defines and limits those who can be considered independent contractors and would broadly expand the number of "employees" who could be organized by unions and would be subject to all the labor and employment laws, such as minimum wage and overtime.