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Called it! Almost immediately following President Biden’s inauguration, the White House issued a memorandum instructing the heads of all executive departments and agencies to stop proposing new rules and withdraw any rules that have been sent off for publication until an agency or department head appointed by President Biden has the chance to review them.

How does this impact employers and HR professionals, you ask? You might recall a recent Tip of the Week explaining the Department of Labor’s (DOL) proposed rules regarding changes to the legal standard for independent contractor classifications. The proposed rule focused on the inquiry on two core factors: (1) the nature and degree of control of the work, and (2) the worker’s opportunity for profit or loss. Many believed this change would make it easier to classify individuals as independent contractors rather than employees than under the previous, vaguer standard used by courts and the DOL.

Though it remains speculation, it is unlikely the rule proposed by the DOL a mere few weeks ago will ever go into effect. President Biden’s presidential platform included increased protections for workers in the gig economy and a goal of implementing a federal standard based on California’s three-prong test, also known as the “ABC test” for determining independent contractor status. President Biden campaigned on a promise to “[a]gressively pursue . . . and put a stop to employers intentionally misclassifying their employees as independent contractors.”

In addition to issues relating to independent contractor classification, President Biden’s “Plan for Strengthening Worker Organizing, Collective Bargaining, and Unions” contained a slew of other policies aimed at enhancing worker protections and collective bargaining rights. Going forward, we can likely expect the DOL to use their rulemaking authority to enhance worker protections at the federal level. We may even see federal law to this effect. Whenever there is a presential transition (not to mention one in the middle of a global health emergency), it’s especially important to pay attention to changes in rules and regulations, as the underlying policy goals and priorities may shift.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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