The Obama DOL had issued two so-called “white papers” one on independent contractor status (Administrator Interpretation No 2015-1).and the other on joint employer status (Administrator Interpretation No. 2016-1). These documents outlined the agency’s position on these two crucial issues and not surprisingly, took a very pro-employee perspective. Well now, in the stroke of a pen (or two pens), those Interpretations have been completely rescinded.

The Secretary of Labor, Alex Acosta, stated that the agency would withdraw these Interpretations. In a statement, the agency asserted that the rescission of these documents “does not change employers’ legal responsibilities” under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, with the agency saying it “will continue to fully and fairly enforce all laws within its jurisdiction.”

The Takeaway

I am not convinced that these withdrawals will matter at all. The Interpretations were drawn from precedent — lots of precedent — on both of these issues. That precedent will not go away. The tenets enunciated in the documents reflect, in my view, the positions that federal courts have been taking for the last several years.

Unless DOL field offices are given specific, explicit guidance from “above” to totally change their view on these issues, which is likely not to happen, field investigators and District Directors in the numerous field offices will continue to apply the principles applicable to these issues in the same, liberal, pro-employee manner which they have been doing for many years now.

So, as Sonny and Cher sang many years ago, “the beat goes on.”

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