Trump-Era Independent Contractor Rule Reinstated (Beltway Buzz, March 18, 2022) – Employment and HR

Luna Ruth

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Trump-Era Independent Contractor Rule Reinstated (Beltway Buzz, March 18, 2022)

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The Beltway Buzz is a weekly update summarizing labor and
employment news from inside the Beltway and clarifying how
what’s happening in Washington, D.C. could impact your

Trump-Era Independent Contractor Rule
In a decision issued on March 15, 2022,
the U.S. District Court for the Eastern District of Texas
reinstated the U.S. Department of Labor’s (DOL) rule,
“Independent Contractor Status Under the Fair Labor Standards
Act,” which was originally scheduled to take effect on March
8, 2021. The Trump-era rule, which focused on workers’ control over the
work and their opportunity for profit and loss, never went into
effect as it was quickly paused and then rescinded altogether by
the Biden administration. Business groups subsequently filed a
legal challenge over the administration’s pause and rescission
of the Trump-era rule. In this ruling, the court focused on
process—a frequent agency rulemaking slip-up, no matter the
administration—holding that the DOL violated the
Administrative Procedure Act when rescinding the rule because it
did not provide a meaningful opportunity for the public to comment
on its proposals and also “refused to ‘meaningfully
consider more limited policies’ than the total withdrawal of
the Independent Contractor Rule.” The judge reinstated the
rule as of its original effective date (March 8, 2021), and it
remains in effect. The DOL has not yet stated whether it will
appeal the decision.

DOL Proposes Prevailing Wage Changes. With
passage of the $1.5 trillion infrastructure law, the administration
continues to make policy changes that will impact the
implementation of the law. First, President Biden issued
his executive order on project labor agreements.
Then, late last week, the DOL announced that it is proposing changes to
its regulations implementing the Davis-Bacon Act (DBA)—the
1931 law that requires the payment of government-set prevailing
wage rates to workers performing work on covered federally funded
construction projects. Currently, the prevailing wage is identified
as such if it is paid to a majority of workers in the area,
otherwise, a weighted average rate is used. The proposal would scrap this formulation
in favor of a pre-1983 definition of “prevailing wage”
that allows such wage to be set if it is paid to only 30 percent of
workers in the area. The proposal also contains new
anti-retaliation clauses for covered contracts that are
“intended to ensure that workers who raise concerns about
payment practices or assist agencies or the Department in
investigations are protected from termination or other adverse
employment actions.” Finally, the proposal would strengthen
agency withholding procedures to aid in backpay recovery when a
violation occurs. The proposed changes would also impact the
seventy-one other “related acts” that use the DBA
prevailing wage calculation.

Federal Contractor Agency Issues New Pay Equity
 On March 15, 2022, the Office of Federal
Contract Compliance Programs (OFCCP) issued a directive that
“explains how OFCCP reviews contractors’ compliance with
their obligations to conduct an in-depth compensation
analysis” and “clarifies OFCCP’s authority to access
and review contractors’ pay equity audits.” Of particular
note, the directive claims that OFCCP has the authority to order
the production of pay equity audits conducted with the assistance
of counsel. Leigh M. Nason has the details.

EEOC Issues COVID-19 Caregiver
 This week the U.S. Equal Employment
Opportunity Commission (EEOC) issued a technical assistance document that
provides guidance relating to discrimination against applicants and
employees who have COVID-19–related caregiving
responsibilities. For example, the guidance reminds employers that
it is unlawful to refuse to hire a female applicant, or take an
adverse action against a female employee, based on the assumption
that she is focused on COVID-19–related caregiving
responsibilities (e.g., such as staying home with children who are
participating in remote learning). Similarly, it would be unlawful
to prohibit a male employee from working a flexible schedule to
care for a family member with COVID-19, if similarly situated
female employees are granted such permission. The guidance also
provides other examples relating to other protected
categories—such as race, age, LGBTQI+ status—and
COVID-19–related caregiving responsibilities.

House Bans Arbitration. Following the
recent enactment of the Ending Forced Arbitration of Sexual Assault and
Sexual Harassment Act of 2021, congressional opponents of
alternative dispute resolution are looking to strike while the iron
is hot. On March 17, 2022, the U.S. House of Representatives voted
to pass the Forced Arbitration Injustice Repeal (FAIR) Act by a
vote of 222-209. The bill prohibits predispute arbitration
agreements in employment, consumer, antitrust, and civil rights
disputes. Due to its broad scope, the bill faces an uphill climb in
the U.S. Senate.

Time of the Season. Because
the Buzz has previously reported on national efforts to set certain uniform time
policies, we feel duty bound to report that the U.S. Senate
this week passed—by unanimous consent—the Sunshine Protection Act, a bill that would
make daylight saving time permanent. Of course, this is not the
first time we have tried permanent daylight saving time. As a
result of a similar act of the U.S. Congress, beginning in January
1974, the United States switched to permanent daylight saving time
on a two-year trial basis. However, the switch was so unpopular, it
lasted less than a year. By August 1974, Congress voted to return
to our current system (the vote in the U.S. House of
Representatives was an overwhelming 383 to 16), and then-president
Gerald Ford signed the legislation in October 1974. No word yet on
how the House of Representatives will respond to the bill.

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