As anticipated, the U.S. Department of Labor (DOL) today announced that it is
withdrawing the Independent Contractor Rule finalized in January under the
Trump administration that was designed to make it easier for businesses to
determine if a worker is an employee or indie contractor.

The move is seen as a blow to transportation firms such as petroleum marketers.
Clarity on independent contractor status is important to petroleum haulers who
hire owner-operators as truckers. Some haulers have faced legal challenges for
classifying these workers as independent contractors. Employers can get sued
for back wages and various benefits if they misclassify employees as
independent contractors, legal sources have told OPIS.

The rule, published in the Federal Register on Jan. 7, was to take effect March
8, but the Biden administration put it on hold.

The DOL said the withdrawal, effective May 6, will "protect workers' rights to
the minimum wage and overtime compensation protections of the Fair Labor
Standards Act (FLSA)." The agency explained that the rule was "in tension with
the FLSA's text and purpose, as well as relevant judicial precedent."

The new rule prioritized two core factors to determine employee status under
the FLSA that the DOL now says "would have undermined the longstanding
balancing approach of the economic realities test and court decisions requiring
a review of the totality of the circumstances related to the employment
relationship." This would have "narrowed the facts" in analyzing if a worker is
an employee or independent contractor, which would result in "workers losing
FLSA protections."

The two core factors are the nature and degree of control over the work and the
worker's opportunity for profit or loss based on initiative and/or investment.

The FLSA requires employers to pay employees at least the federal minimum wage
and overtime of at least one-and-one-half times the regular rate of pay for
every hour beyond a 40-hour work week. Those protections do not apply to
independent contractors.

Labor law firm Fisher Phillips, which has petroleum marketers as clients,
earlier this year noted that the rule faced a "very uncertain future" under the
Biden administration, which would be in office before the rule was scheduled to
take effect.

In February, the DOL also withdrew an opinion letter offering favorable
guidance for transportation firms that treat owner-operator truck drivers as
independent contractors.

The Jan. 19 opinion letter (FLSA2021-9) on truckers tackled two issues: whether
requiring compliance with specific legal obligations or health and safety
standards is a factor in determining the employee status of an owner-operator
driver under the FLSA and whether certain owner-operators are employees under
the FLSA.

Under both scenarios, the DOL under the Trump administration had said that
owner-operators would likely be considered independent contractors, not
employees.

However, under the Biden administration the DOL said that the opinion letter
was "issued prematurely" because it was based on a rule that had not gone into
effect and could not be "relied upon as statements of agency policy as of the
date of withdrawal."

--Reporting by Donna Harris, dharris@opisnet.com; Editing by Michael Kelly,
michael.kelly3@ihsmarkit.com




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