Law and the Workplace

Category Archives: Biden Administration Coverage

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DOL’s New Independent Contractor Rule: A Return to 2020

By Allan Bloom on Posted in Biden Administration Coverage, FLSA, Independent Contractor, Misclassification, Wage and Hour
It’s been a bumpy road for the federal rules on independent contractor status under the Fair Labor Standards Act. In the courts, the test has always focused on the “economic reality” of the relationship between a worker and the entity that benefits from the services provided to determine whether the worker is an employee or … Continue Reading

Eleventh Circuit Narrows Nationwide Injunction On President Biden’s Contractor Vaccine Mandate

By Guy Brenner, Jacob P. Tucker and Claudia Khoury-Yacoub on Posted in Biden Administration Coverage, Coronavirus
On August 26, the Eleventh Circuit issued its long-awaited decision in State of Georgia, et al v. President of the United States, et al, Case No. 21-14269.  The Eleventh Circuit upheld, but narrowed, an existing nationwide preliminary injunction enjoining enforcement of President Biden’s contractor and subcontractor vaccine mandate.  Specifically, the Court upheld the injunction as … Continue Reading

FTC Enforcement Action Limits Noncompetition Agreements in “Sale of Business” Transactions

By Scott Tan, Daryl Leon, Joseph O’Keefe and Steven J. Pearlman on Posted in Biden Administration Coverage, Non-Competes and Protection of Corporate Assets
On July 9, 2021, President Biden issued an Executive Order, in which he described the nation’s antitrust laws as the “first line of defense against the monopolization of the American economy” and encouraged the Federal Trade Commission (“FTC”) to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit … Continue Reading

In Colorado, “Low Wage” Now Means Six-Figures For Non-Competes

By Steven J. Pearlman, Joseph O’Keefe, Daryl Leon and E. Sydney Cone on Posted in Biden Administration Coverage, Non-Competes and Protection of Corporate Assets, Trade Secrets, Wage and Hour
On June 8, 2022, Colorado Governor Jared Polis signed Colorado House Bill 22-1317 (the “Bill”), which was passed by the Colorado Legislature on May 10, 2022. Effective 90 days from the end of the legislative session – on August 10, 2022 – Colorado will join the ranks of Illinois, Washington, and other states that have … Continue Reading

U.S. Supreme Court Stays OSHA Vaccine/Testing Mandate for Employers with 100 or More Employees

By Evandro Gigante, Mark Harris, Lexie Reynolds and Raymond Arroyo on Posted in Biden Administration Coverage, Coronavirus, Workplace Safety
UPDATE: On January 25, 2022, OSHA filed a notice withdrawing the Emergency Temporary Standard apart from the extent it serves as a proposed rule under the OSH Act.  For more details, click here. On January 13, 2022, the U.S. Supreme Court, in a per curiam opinion, stayed OSHA’s Emergency Temporary Standard (“ETS”) mandating that employers … Continue Reading

Sixth Circuit Panel Dissolves Stay of OSHA Vaccine/Testing Mandate

By Evandro Gigante, Guy Brenner, Laura M. Fant, Lexie Reynolds and Raymond Arroyo on Posted in Biden Administration Coverage, Coronavirus, Workplace Safety
UPDATE: On January 13, 2022, the U.S. Supreme Court granted applications to stay OSHA’s Emergency Temporary Standard pending review on the merits by the Sixth Circuit, and if writs of certiorari are subsequently sought to the U.S. Supreme Court, pending the Court’s disposition of such writs.  Click here to read more about the Court’s decision.  On … Continue Reading

FTC and DOJ Hold Workshop On Non-Compete Agreements

By Guy Brenner, Daryl Leon and E. Sydney Cone on Posted in Biden Administration Coverage, Non-Competes and Protection of Corporate Assets
As we reported this past summer, President Biden signed an Executive Order titled “Promoting Competition in the American Economy.” At the time, President Biden urged the chair of the Federal Trade Commission (the “FTC”) to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.” Since the … Continue Reading

OSHA Releases Emergency Temporary Standard Requiring Mandatory Vaccination or Weekly Testing for Employers with 100 or More Employees

By Evandro Gigante, Guy Brenner, Steven Hurd, Laura M. Fant and Lexie Reynolds on Posted in Biden Administration Coverage, Coronavirus, Workplace Policies and Procedures, Workplace Safety
UPDATE: On January 13, 2022, the U.S. Supreme Court granted applications to stay OSHA’s Emergency Temporary Standard pending review on the merits by the Sixth Circuit, and if writs of certiorari are subsequently sought to the U.S. Supreme Court, pending the Court’s disposition of such writs.  Click here to read more about the Court’s decision.  On … Continue Reading

New Federal Vaccine Rule:  Wage and Hour Implications

By Allan Bloom on Posted in Biden Administration Coverage, Coronavirus, FLSA, Wage and Hour, Workplace Policies and Procedures, Workplace Safety
UPDATE: On January 13, 2022, the U.S. Supreme Court granted applications to stay OSHA’s Emergency Temporary Standard pending review on the merits by the Sixth Circuit, and if writs of certiorari are subsequently sought to the U.S. Supreme Court, pending the Court’s disposition of such writs.  Click here to read more about the Court’s decision.  On … Continue Reading

OSHA To Issue Emergency Temporary Standard Requiring Large Employers to Mandate Vaccination or Weekly Testing for Employees

By Guy Brenner, Evandro Gigante, Lexie Reynolds, Arielle E. Kobetz and Laura M. Fant on Posted in Biden Administration Coverage, Coronavirus, Workplace Policies and Procedures, Workplace Safety
On September 9, 2021, the Biden Administration announced that the Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing an Emergency Temporary Standard that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require unvaccinated workers to provide a negative COVID-19 test result at least … Continue Reading

DOL Rescinds Trump-Era Joint Employer Rule

By Heylee Bernstein and Allan Bloom on Posted in Biden Administration Coverage, FLSA, Independent Contractor, Wage and Hour
The U.S. Department of Labor announced on July 29 that it will rescind the March 2020 rule on Joint Employer Status under the Fair Labor Standards Act (the “2020 Rule”).  The DOL’s action removes the regulations established by the 2020 Rule and will become effective on September 28, 2021. 2020 Joint Employer Rule The 2020 … Continue Reading

President Biden Signs Executive Order Targeting Noncompetition Agreements

By John Barry, Daryl Leon and Abigail Rosenblum on Posted in Biden Administration Coverage, Non-Competes and Protection of Corporate Assets
Overview On July 9, 2021, President Biden signed an Executive Order on Promoting Competition in the American Economy (the “Order”), which, among other things, “encourage[s]” the “Chair of the [Federal Trade Commission (the “FTC”)] . . . to consider working with the rest of the Commission to exercise the FTC’s statutory rulemaking authority . . … Continue Reading

Trump-Era Independent Contractor Rule Never to See Light of Day

By Allan Bloom on Posted in Biden Administration Coverage, FLSA, Wage and Hour
Remember the Trump administration’s new rule for classifying workers as independent contractors?  The one issued on January 6, 2021, only weeks before President Biden took office?  The one that would have revised the U.S. Department of Labor’s test for determining worker status under the Fair Labor Standards Act to focus on two “core factors” (control … Continue Reading

DOL and Liquidated Damages: The Breakup Only Lasted 9 Months

By Allan Bloom on Posted in Biden Administration Coverage, FLSA, Wage and Hour
On April 9, 2021, the U.S. Department of Labor (DOL) rescinded the Trump-era enforcement practice of abstaining from seeking liquidated damages in connection with pre-litigation investigations and settlements of wage and hour claims.  In Field Assistance Bulletin No. 2021-2, issued by the Wage and Hour Division’s Principal Deputy Administrator, Jessica Looman, the agency announced that … Continue Reading

Business Groups Challenge Biden Administration’s Delay of Trump-era Independent Contractor Rule

By Allan Bloom and Eric Novak on Posted in Biden Administration Coverage, FLSA, Independent Contractor, Wage and Hour
In a complaint filed on March 26, 2021, business groups challenged a U.S. Department of Labor March 4, 2021 final rule to delay the effective date of the Trump-era regulation on independent contractor classification.  As we previously reported, that Trump-era rule, which was finalized two weeks before President Biden took office, was initially scheduled to … Continue Reading

OSHA Launches New Workplace Safety Initiative and Updated Enforcement Guidance Regarding COVID-19

By Harris Mufson, Lexie Reynolds and Julia Hollreiser on Posted in Biden Administration Coverage, Coronavirus, Workplace Safety
As we previously reported, on January 21, 2021, President Biden issued an executive order aimed at increasing COVID-19 workplace safety measures at the federal level. In response to President Biden’s directive, OSHA announced on March 12, 2021 the launch of a national emphasis program (“NEP”) to focus its enforcement efforts on employers that put the … Continue Reading

Biden Administration Wage and Hour Update:  50 Days In…

By Allan Bloom on Posted in Biden Administration Coverage, FLSA, Independent Contractor, Wage and Hour
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 … Continue Reading

[Podcast]: What Can Employers Expect from the Biden Administration?

By Harris Mufson, Evandro Gigante and Allan Bloom on Posted in Biden Administration Coverage, The Proskauer Brief Podcast
In this episode of The Proskauer Brief, partners Harris Mufson, Evandro Gigante, and Allan Bloom discuss key potential employment law changes under the Biden Administration.  Tune in as we explore an evolving legal landscape – from new health and safety requirements to wage and hour regulations and expanded anti-discrimination laws. Listen to the podcast.  … Continue Reading

DOL Takes First Step to Revisit Independent Contractor and Tip Rules

By Allan Bloom on Posted in Biden Administration Coverage, FLSA, Wage and Hour
In accordance with the Biden administration’s January 20 regulatory freeze memorandum, the U.S Department of Labor issued proposals to delay the effective dates of the Final Rules on independent contractor classification and tip regulations by 60 days, to allow the agency “the opportunity to review and consider the questions of law, policy, and fact raised … Continue Reading

OSHA Issues New Workplace Safety Guidance Regarding COVID-19

By Harris Mufson, Lexie Reynolds and Heylee Bernstein on Posted in Biden Administration Coverage, Coronavirus, Workplace Safety
As we previously reported, last week President Biden directed the Secretary of Labor to issue revised guidance to employers on workplace safety during the COVID-19 pandemic. In response to that directive, OSHA issued what the DOL described as “stronger” worker safety guidance to advise employers during the COVID-19 pandemic. OSHA’s newest guidance, titled “Protecting Workers: … Continue Reading

DOL Ends PAID Program

By Allan Bloom on Posted in Biden Administration Coverage, FLSA, Wage and Hour
On January 29, the U.S. Department of Labor announced that it was discontinuing the Payroll Audit Independent Determination (“PAID”) program, effective immediately.  Under the program, which began in 2018, employers could self-report wage and hour violations to the DOL with the promise that the agency would supervise a settlement of the violations without seeking liquidated … Continue Reading

Biden Continues to Address Administration’s Top Labor Positions, Plans to Nominate Julie Su as Deputy Labor Secretary

By Allan Bloom and Heylee Bernstein on Posted in Biden Administration Coverage
***UPDATE: The United States Senate confirmed Julie Su to serve as Deputy Labor Secretary on July 13, 2021. Su’s nomination was approved by a vote of 50-47, along party lines.*** ***UPDATE: According to a Bloomberg Law Report, the Senate Health, Education, Labor and Pensions Committee will hold a confirmation hearing for Julie Su on March … Continue Reading

DOL Begins Withdrawal of Trump-Era Opinion Letters

By Allan Bloom on Posted in Biden Administration Coverage, FLSA, Independent Contractor, Wage and Hour
As expected, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced the withdrawal of three opinion letters issued in the waning days of the Trump administration.  The opinion letters being withdrawn are: FLSA2021-4, which addressed whether a restaurant may institute a tip pool under the Fair Labor Standards Act that includes both servers, … Continue Reading
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