We’re 50 days into the Biden administration.  Here’s an update on where things stand with respect to wage and hour law at the federal level:

  • On March 11, 2021, the U.S. Department of Labor’s Wage and Hour Division (WHD)—as expected—announced its proposals to rescind the Trump-era rules on independent contractor classification and joint employment.
    • WHD’s Notice of Proposed Rulemaking (NPRM) to withdraw the independent contractor rule—which was initially scheduled to take effect on March 8, 2021 but then delayed until May 7, 2021 by virtue of the White House’s January 20 regulatory freeze memorandum—is here. The Trump-era rule would have relaxed the standards for classifying workers as independent contractors, elevating two factors (control and opportunity for profit or loss) above other factors and giving them greater probative value in the classification analysis.  Per the NPRM, this approach would mark a departure from WHD’s longstanding approach and be inconsistent with Supreme Court precedent.  President Biden has signaled an intention to bring the federal classification rules in line with the “ABC” test adopted by certain states, which can make it considerably more difficult for certain businesses to classify workers as independent contractors.
    • The NPRM to rescind the joint employment rule—which took effect on March 16, 2020—is here. Per WHD, the rule—which set forth separate considerations for “horizontal” and “vertical” joint employment—departs from and has been limited by judicial precedent and otherwise is not sufficiently grounded in the statutory text.
    • Public comments on both NPRMs are due by April 12.
  • The (first) push to raise the federal minimum wage above $7.25 fell flat. On March 5, 2021, the Senate (58-42) voted down an amendment to the COVID-19 relief bill that would have increased the minimum wage to $15 per hour by 2025.  The House of Representatives approved the final version of the bill—the American Rescue Plan Act of 2021, H.R. 1319—on March 10 without any minimum wage hike.  President Biden signed the bill into law on March 11.
  • On February 19, 2021, WHD announced the withdrawal of two Trump-era opinion letters—FLSA2019-6, addressing independent contractor status under the Fair Labor Standards Act, and FLSA2019-10, addressing the compensability of sleeping time for truck drivers.
  • On February 11, 2021, the Senate’s Health, Education, Labor, and Pensions (HELP) Committee approved President Biden’s nomination of Boston Mayor (and former union leader) Marty Walsh to U.S. Secretary of Labor. All of the Committee’s Democrats and seven of its eleven Republicans voted in favor.  The nomination now heads to the full (and Democratic-controlled) Senate, a majority of which is needed to approve the nomination.
  • The HELP Committee will hold a confirmation hearing for President Biden’s nominee for Deputy Secretary of Labor—current California Labor Secretary Julie Su—on March 16, 2021.

Proskauer’s Wage and Hour Group is comprised of seasoned litigators who regularly advise the world’s leading companies to help them avoid, minimize, and manage exposure to wage and hour-related risk.  Subscribe to our wage and hour blog to stay current on the latest developments, and check out the latest Biden administration developments impacting employers on Proskauer’s Law and the Workplace blog.

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Photo of Allan Bloom Allan Bloom

Allan S. Bloom is a nationally recognized trial lawyer and advisor who represents management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended a number of the world’s leading companies against claims for unpaid wages…

Allan S. Bloom is a nationally recognized trial lawyer and advisor who represents management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended a number of the world’s leading companies against claims for unpaid wages, employment discrimination, breach of contract and wrongful discharge, both at the trial and appellate court levels as well as in arbitration. He has secured complete defense verdicts for clients in front of juries, as well as injunctions to protect clients’ confidential information and assets.

As the leader of Proskauer’s Wage and Hour Practice Group, Allan has been a strategic partner to a number of Fortune 500 companies to help them avoid, minimize and manage exposure to wage and hour-related risk. Allan’s views on wage and hour issues have been featured in The New York TimesReutersBloomberg and Fortune, among other leading publications. His class-action defense work for clients has saved hundreds of millions of dollars in potential damages.

Allan is regularly called on to advise boards of directors and senior leadership on highly sensitive matters such as executive transitions, internal investigations and strategic workforce planning. He also has particular expertise in the financial services industry, where he has litigated and arbitrated cases, including at FINRA and its predecessors, for more than 20 years.
A prolific author and speaker, Allan was the Editor of the New York State Bar Association’s Labor and Employment Law Journal from 2012 to 2017. He has served as an author, editor and contributor to a number of leading treatises in the field of employment law, including ADR in Employment Law (ABA/Bloomberg BNA, Senior Editor), Employment Discrimination Law (ABA/Bloomberg BNA, Final Proof Editor), Cutting Edge Advances in Resolving Workplace Disputes (Cornell University/CPR, Editor), The Employment Law Review (Law Business Research, U.S. Chapter Author), and The Complete Compliance and Ethics Manual (SCCE, Chapter Author).

Allan is a member of the NYSBA’s House of Delegates, sits on the Executive Committee of the NYSBA’s Labor and Employment Law Section, and is a Fellow of the College of Labor and Employment Lawyers. He has been recognized as a leading practitioner by Chambers since 2011.