Officials have identified other industries as core focus
As the Department of Labor (DOL) prepares to finalize a new rule on the classification of employees and independent contractors, Biden Administration officials have previously made public comments indicating that the DOL is unlikely to use its new rule to force the reclassification of rideshare and delivery gig workers.
Instead, Administration officials have emphasized that enforcement of the new rule will focus on obvious cases of misclassification, without large, nationwide changes to worker status.
Below are a collection of their comments:
DOL’s Looman: Rule Unlikely to Result in Large Worker Classification Changes
“The acting head of the DOL’s Wage and Hour Division said Tuesday the rulemaking wasn’t likely to result in large worker classification changes.’ What we anticipate is that this will really help provide guidance to both avoid and prevent misclassification,’ Jessica Looman said during a press call. ‘But this is a framework that has been used and has been well recognized and understood.’’ (Bloomberg, 10/11/22)
Top DOL Attorney: Rule Doesn’t “Target Any Particular Industry”
“The agency’s top attorney, Seema Nanda, also noted during the press call that the proposal is “not intended to target any particular industry or business model.” (Bloomberg, 10/11/22)
Looman: Restaurant Dishwashers An Example of Misclassification
“‘We’ve found dishwashers were misclassified as independent contractors in order to avoid paying them the overtime they were otherwise entitled to,’ said Jessica Looman, the agency’s principal deputy wage and hour administrator, on a press call.” (CNBC, 10/11/22)
Looman: Problem Sectors Include Nursing, Construction, Landscaping, and Restaurants
“The Wage and Hour Division is committed to combating misclassification and is focused on sectors where we know workers are vulnerable and violations are rampant, including construction, nursing and home care, janitorial, landscaping and restaurants, among others.”
(DOL blog post, 5/6/21)
Acting Labor Secretary Julie Su: “Only Congress” Can Adopt a Full Reclassification Text
“The ABC test was codified in California. It’s not the only state that has it, but when the Department of Labor issued our rule on independent contractor versus employee classification, we explicitly did not include the ABC test in our rule. So that is why I answer ‘yes’ to your question. Only Congress can adopt the ABC test. I cannot.” (Congressional Testimony, 4/20/23)
Su: Misclassification Rule For Workers “Who Work Side by Side” with Full Time Employees
“I think, Senator, that bonafide independent contractors have a place in our economy and need to be able to operate. I also believe that misclassification — meaning when you have someone who should be an employee but is called an independent contractor, maybe they work side by side with other people who are doing the exact same thing as they are, but they’re called an independent contractor so they’re not protected by minimum wage over time, unemployment, insurance and other laws, and the employees are — that that is a problem in our economy that needs to be addressed.” (Congressional Testimony, 4/20/22)
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