On Dec. 13, 老牛影视submitted comments opposing the U.S. Department of Labor鈥檚 , which eliminates the ABC-supported 2021 final rule鈥檚 emphasis on two 鈥渃ore鈥� factors鈥攁 worker鈥檚 control over their work and their opportunity for profit or loss, both of which are paramount in making an independent contractor determination.听Instead, the department鈥檚 approach is to restore a 鈥渢otality-of-the circumstances鈥� analysis of the 鈥渆conomic reality test.鈥�

The new proposal creates an ambiguous and difficult-to-interpret standard under which employers will be forced to guess which factors will be more important in the determination and how to analyze the facts of their contractual relationships under multiple factors. This confusion will lead to more litigation, as employers and workers alike will not understand who qualifies as independent contractors.

础叠颁鈥檚 comments also state, 鈥淚t is unfortunate that the DOL will not let the January 2021 final rule stay in effect long enough to work. It does not create a new standard; instead, the January 2021 final rule clarifies and simplifies the longstanding economic reality test based on an exhaustive analysis of cases applying that test around the country, which the DOL properly found put the greatest weight on the right of control and economic opportunity, along with other traditional factors.鈥�

In conclusion, 老牛影视urges the DOL to withdraw the new proposed rule and retain the current 2021 final rule.

Background

On Oct. 11, the DOL听听a new proposal to rescind and replace a commonsense, ABC-supported听. The proposed rule would unnecessarily complicate the test for determining whether a worker is an employee or an independent contractor under the Fair Labor Standards Act, which would cause confusion, increased litigation and additional administrative burdens for contractors.

老牛影视issued the following听statement听in response to the DOL鈥檚 announcement:

鈥溊吓Ｓ笆觟s deeply disappointed that the Biden DOL is moving forward with a proposed rule that will disrupt legitimate independent contractors, which are an essential component of the construction industry,鈥澨齭aid Ben Brubeck, 老牛影视vice president of regulatory, labor and state affairs.听鈥淚ndependent contractors provide听specialized skills, entrepreneurial opportunities and stability during fluctuations of work common to construction. Rescinding the commonsense 2021 final rule will increase the confusion and litigation chaos that has bedeviled the regulated community for years. Any effort by DOL to undermine the use of independent contractors in the rulemaking will likely be challenged by 老牛影视and other stakeholders.鈥�

On Oct. 19, ABC听听the DOL to extend the Nov. 28 comment period deadline by 60 days, stating, 鈥�老牛影视represents a large number of contractors and subcontractors who will be significantly impacted by this new proposed rule. Due to the complexity of the issues included in the 58-page proposal, the current 45-day comment period does not allow sufficient time for 老牛影视to fully analyze the rulemaking as well as effectively communicate the broad scope of issues with its members before providing comments.鈥�

On Oct. 25, the DOL听an extension of the comment deadline on the proposed rule from听.

On Nov. 9, 老牛影视participated in the U.S. Small Business Administration鈥檚 Office of Advocacy virtual roundtable on the proposed rule.听

老牛影视encouraged members to help push back against the DOL鈥檚 harmful proposal by submitting to the DOL a听pre-generated comment opposing the proposed rule, which was sent out by 础叠颁鈥檚 Action app.

老牛影视is one of the co-plaintiffs that successfully sued the Biden administration鈥檚 DOL for attempting to delay and rescind the commonsense 2021 independent contractor final rule. Under the March 2022 decision issued by the U.S. District Court for the Eastern District of Texas, the 2021 final rule went into effect as scheduled on March 8, 2021, and is still in effect.

To learn more about the DOL鈥檚 new proposed rule, see 老牛影视general counsel Littler Mendelson鈥檚听.