Businesses strive to draw the line correctly on who is an employee versus who is an independent contractor. New regulations issued by the Department of Labor (DOL) in early January promised to help. See, 29 CFR §§795.100. But by late January, those regulations under the Fair Labor Standards Act (FLSA) were frozen. Unlike laws passed by Congress, administrative regulations are far more easily altered when a new president takes office. The regulations published by President Trump's DOL in January had an effective date of March 8, 2021. Now, President Biden's DOL will have an additional 60 days beyond that effective date to announce what will happen next. Those new regulations provided a much simpler test for classifying workers. While including five factors, the results turned on two of those factors: (1) the nature and degree of the worker's control over the work and (2) the worker's opportunity for profit/loss based on personal initiative or investment. Most...
Joe Biden's ascendance to the presidency not only spells doom for many of the Trump administration's business-friendly employment policies; it also may place established tenets of federal labor law on the chopping block. Biden may bring with him to the White House an ambitious pro-labor platform aimed at giving workers and unions a leg up after four years in which the Trump administration moved the legal needle sharply in employers' direction. A recent article in Law360, featuring McDermott partner Ron Holland, outlines four areas that labor and employment lawyers should watch after the Biden transition. Access the article.
This year, the US Supreme Court will get a chance to say whether federal civil rights law protects gay and transgender employees from discrimination, and California courts will grapple with recent changes making it harder for Golden State businesses to label workers as independent contractors. McDermott’s Michael Sheehan looked at these and other cases to watch in 2020 in a recent article for Law360. Access the full article. Originally published by Law360, January 2020
This month, Assembly Bill 5 (A.B. 5) was signed into California law. A.B. 5 codifies the “ABC Test”—used to determine if a worker is an independent contractor—which is broader, harsher and more inclusive than the common law test with which most businesses are familiar. A.B. 5 appears to be the death knell of convenience for retaining contractors in the Golden State, as well as the advent of a new wave of wage and hour litigation. Access the full article.
Beginning with W-2 forms filed with respect to 2016 wages, a new law requires employers to file the government copy by January 31, 2017, for both paper and electronic copies. The accelerated deadline also applies to 1099-MISC forms for independent contractors. Read the full article.