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 Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended…

Allan Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended many 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, before government agencies, and in private negotiations. 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 billions of dollars in potential damages.

Allan is regularly called on to advise operating companies, management companies, fund sponsors, boards of directors and senior leadership on highly sensitive matters including executive and key person transitions, internal investigations and strategic workforce planning. He has particular expertise in the financial services industry, where he has litigated, arbitrated, and mediated disputes 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), Employment Discrimination Law (ABA/Bloomberg BNA), Cutting Edge Advances in Resolving Workplace Disputes (Cornell University/CPR), The Employment Law Review (Law Business Research, U.S. Chapter Author), and The Complete Compliance and Ethics Manual (SCCE).

Allan has served as longtime pro bono counsel to Lincoln Center for the Performing Arts and The Public Theater, among other nonprofit organizations.  He is a past Vice Chair of Repair the World, a nonprofit organization that mobilizes volunteers and their communities to take action to pursue a just world, and a past recipient of the Lawyers Alliance Cornerstone Award for extraordinary contributions through pro bono legal services.

Allan is a Fellow of the College of Labor and Employment Lawyers and has been recognized as a leading practitioner by Chambers since 2011.