Stop Licking My Face? DOL Rescinds Independent Contractor Guidance

Tasty! Image by Roman Michael Gottfried from Pixabay

In this issue of Science Focus Magazine, the BBC tackles the difficult question of Why Do Dogs Lick People?

Says Dr Emily Blackwell, a lecturer in companion animal behaviour and welfare at the University of Bristol, “It’s a greeting and can be taken as a compliment.”

Ok then. That’s a nice gesture.

But that’s not going to be the case with the new administration’s Department of Labor, apparently. Steps are already being taken to remove helpful guidance on whether workers qualify as employees or independent contractors.

That’s not a nice gesture. There will be no lovable face licking by the new DOL.

On January 19th, the Trump DOL issued two opinion letters addressing whether certain kinds of workers are employees are independent contractors and the appropriate test for making that determination.

But last week, under direction from the Biden Administration, the DOL rescinded the guidance. Here’s what the two letters covered:

  • FLSA2021-8: Addressing whether certain distributors of a manufacturer’s food products are employees or independent contractors under the FLSA.
  • FLSA2021-9: Addressing whether requiring tractor-trailer truck drivers to implement safety measures required by law constitutes control by the motor carrier for purposes of their status as employees or independent contractors under the FLSA, and whether certain owner-operators are properly classified as independent contractors.

Under the Trump administration, the DOL had committed to publishing more opinion letters. These letters help the public understand the DOL’s interpretation of the law. They apply general rules to more specific situations. They answer questions. That’s good, right? Doesn’t the government want compliance? From the perspective of the business community, compliance is easier if we know what the DOL is thinking.

Fast forward to last week. Even though Marty Walsh has not yet been confirmed as Secretary of Labor, the DOL is already undoing what the DOL had recently done.

Looking ahead, we can expect to see fewer opinion letters, or maybe none. The Biden Administration has indicated that these types of unofficial guidance documents should not be issued. The Administration feels that it ties the hands of the DOL. During the Obama Administration, the DOL entirely discontinued the practice of publishing opinion letters on wage and hour issues, so a plunge back into the darkness seems likely to happen again under a Biden Administration DOL.

This is a bad trend for businesses trying to understand and comply with the law.

So my advice today? If you want some love and attention when trying to unravel the independent contractor versus employee conundrum, don’t look to the DOL for help. Instead, go get a puppy. It might lick your nose, which could be nice.


© 2021 Todd Lebowitz, posted on, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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