Employment & Labor Insider

"What in the world is going on?"

The U.S. Department of Labor has issued proposed regulations on who is an "independent contractor" for purposes of the federal Fair Labor Standards Act, the Family and Medical Leave Act, and the Migrant and Seasonal Agricultural Worker Protection Act. 

The proposed rule, which was published in this morning's Federal Register, would replace a rule issued in 2024 under the Biden Administration. Jim Coleman, chair of our Wage and Hour Compliance & Litigation Practice Group, wrote about the Biden rule at the time.

We are still reviewing the new proposed rule but will follow up with a full-blown bulletin in the near future. The DOL is accepting comments until April 28. 

Meanwhile, the National Labor Relations Board has formally replaced Biden-era regulations on joint employment that were issued in 2023. Those regulations never actually took effect, but the NLRB has now formally withdrawn them and reinstated more employer-friendly regulations that were issued in February 2020, during the first Trump Administration. David Phippen has written a lot about the prior regulations. Here are the highlights:

• NLRB follows path set by DOL for joint-employer status (March 2020)
• NLRB issues "joint employer" regulations that are not employer-friendly (October 2023)
• Federal court rules that new NLRB joint employer regulations are unlawful (March 2024)

We'll have more on the NLRB's most recent action, and what it means for employers, in the near future.