Intent to Reconsider
New leadership at the U.S. Labor Department suggests it may rescind the Biden-Harris administration's independent-contractor rule.
The federal government has indicated in court that it may rescind the Biden-Harris administration’s independent-contractor rule and undertake the process of new rule-making.
Yesterday, the U.S. Labor Department filed a status report in one of several lawsuits against the Biden-Harris administration over its independent contractor rule. This status report was filed with regard to the Frisard case, whose plaintiff is represented by Liberty Justice Center and the Pelican Institute.
In the section of the status report that suggests the government may rescind the current rule and undertake the process of new rule-making with regard to independent contractors, the government also references the Warren case. That’s the case in which I am among the plaintiffs, represented pro bono by Pacific Legal Foundation.
The Warren case has been placed in abeyance (basically, put on hold) to give the Labor Department time to undertake a new rule-making process.
Here is the pertinent section of the status report:
“On the evening of April 3, the Department of Labor informed undersigned counsel that it intends to reconsider the 2024 Rule at issue in this litigation, including whether to issue a notice of proposed rulemaking rescinding the regulation. The following day, the government filed a motion for an abeyance in the Eleventh Circuit, requesting that the court place the related Warren appeal in abeyance pending the agency’s reconsideration of the rule, because the agency’s reconsideration and potential rescission of the rule may obviate the need for further litigation. …
“The government expects to request similar abeyances in other related challenges to the rule at issue in order to permit the Department of Labor sufficient time to complete the process of reconsidering the regulation.”
My understanding, from several attorneys involved in various cases, is that this development is likely to mean good news for those of us who have been fighting to preserve everyone’s freedom to choose self-employment.
This development means the Biden-Harris administration rule will remain in effect for now, but the Trump-Vance administration is saying that it is considering a change.
But Wait. There’s More.
This news from the federal courts comes after several developments that all suggest Republicans plan to use their majority power in Washington, D.C., to try and protect independent contractors:
The confirmation of Keith Sonderling as deputy labor secretary, following his history of supporting independent contractors.
The nomination of Jonathan Berry, who has written prominently in support of independent contractors, to serve as solicitor of the U.S. Labor Department.
The introduction of the Modern Worker Empowerment Act in Congress, sponsored by Congressman Kevin Kiley, R-Calif., a champion of independent contractors who has been fighting for years to try and stop the kind of devastation that resulted from California’s Assembly Bill 5.
A recent hearing on Capitol Hill in which Congressman Ryan Mackenzie, R-Pa., chairman of the Subcommittee on Workforce Protections, said he hoped to see bipartisan cooperation for “bringing a much-needed update to our federal statutes and bring them into the 21st century as the foundation of our nation’s wage and hour protections.” Mackenzie also noted that: “We also saw the Department of Labor under President Biden issue an unworkable, confusing, ABC-style worker misclassification test to determine which workers are employees and which are independent contractors. This rule limits the ability of as many as 70 million freelancers, rideshare drivers and other independent workers to earn a living on terms that they set for themselves.”
Taken together, all these developments suggest that if we were in a sports locker room at halftime, the coach would be telling us that our side has the Big Mo—momentum— and that we need to keep the pressure on.
I continue to urge everyone who wishes to preserve the choice of self-employment for all Americans to contact your lawmakers. Tell them you support what these officials are doing to try and protect us all against freelance busting. Ask them to co-sponsor the Modern Worker Empowerment Act and get it signed into law.
Do what you can to help the people in Washington who are trying to help us. That’s what ultimately leads to change.