Only a few weeks into his new Administration, President Biden has already started to change the landscape for employers. Summaries of the most pertinent changes are below.
• Pause to New Independent Contractor Classification Rule. The Administration froze the implementation of all regulations that had not yet taken effect, pending further internal review. This means that the new worker classification regulations, which aimed to simplify the employee versus independent contractor analysis for employers, is on hold for now and has an uncertain future.
o On a similar note, the U.S. Department of Labor (“DOL”) rescinded Opinion Letter FLSA2021-9, which addressed the independent contractor status of certain tractor-trailer owner-operators, and Opinion Letter FLSA2021-8, which addressed whether distributors of a manufacturer’s food products are employees or independent contractors.
• Revocation of Executive Order on Diversity and Inclusion Training. The President issued an Executive Order revoking the previous administration’s Executive Order on Combating Race and Sex Stereotyping, the implementation of which had been barred by the courts. Employers may now continue diversity and inclusion trainings as conducted prior to November 2020. The “hotline” that was previously established as a vehicle for reporting concerns under the Trump Administration’s Executive Order has also been shut down.
• End of PAID Program. The DOL ended the Payroll Audit Independent Determination Program, which allowed employers to self-report certain Fair Labor Standards Act (“FLSA”) violations to avoid federal litigation, penalties, or damages.
• Stronger OSHA Workplace Guidelines. The DOL’s Occupational Safety and Health Administration issued stronger worker safety guidance to help employers and workers implement a coronavirus prevention program. These guidelines are not mandatory and do not create any new legal obligations for employers, but may preview the implementation of upcoming regulations.
• Protection of Employees from Sex Discrimination. The President issued an Executive Order requiring all federal agencies to identify all laws prohibiting sex discrimination that they enforce, consider whether to make changes to or take additional agency actions necessary to fully implement the Supreme Court’s recent decision in Bostock v. Calyton County (holding discrimination based on sexual orientation and gender identity is prohibited under Title VII), and to quickly develop a plan to carry out and implement the actions that the agency has identified.
Employers should expect the implementation of regulations and other legal obligations pursuant to this Executive Order.
Meredith S. Campbell
Chair Employment and Labor Group
Co-Chair Corporate Investigations, Governance & Risk Management
Email firstname.lastname@example.org T(301)255-0550