In its first 100 days, the Biden administration has walked back a number of Trump-era changes to wage and hour guidance and rulemaking under the Fair Labor Standards Act (FLSA). Among the most significant changes are the United States Department of Labor (DOL) efforts to roll back three rules that were made final under the Trump administration.
1. The independent contractor rule
In particular, the DOL has withdrawn the independent contractor rule that would have made it easier to classify workers as independent contractors under the FLSA.
2. Revisions to the FLSA’s tip regulations
The DOL is also unwinding certain revisions to the FLSA’s tip regulations. The agency has delayed the effective date of those portions of the final tip credit rule addressing civil money penalties and application of the tip credit to the time tipped employees spend performing non-tipped duties. The DOL has suggested it will withdraw and repropose those provisions.
3. The joint employer rule
Also under DOL scrutiny is the joint employer rule – a Trump-era rule providing for a more business-friendly approach to determining which entities are joint employers for FLSA purposes. The joint employer rule was already subject to litigation, so any new proposal by the DOL is likely to face similar challenges.
Other changes in the first 100 days
In addition to putting the brakes on these final rules, the Biden administration has thrown its support behind a $15 federal minimum wage, something Biden has already mandated by executive order for federal contractors beginning in 2022. The DOL has also withdrawn several FLSA opinion letters, most of which the agency concluded were issued prematurely based on the not-yet-effective final rules, and has ended the Payroll Audit Independent Determination (PAID) program – a Trump administration creation under which employers could self-report FLSA violations and avoid enhanced damages.
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In the first 100 days, the DOL has been very active addressing the independent contractor, tip credit, and joint employer rules. As we move beyond the first 100 days, we can expect the agency to engage in new rulemaking in those areas and to generally take a more employee-friendly approach in policies and guidance.
