Yesterday the U.S. Department of Labor’s Wage and Hour Division (WHD) announced the withdrawal of an opinion letter which can impact CLDA members.
- 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.
Given that FLSA2021-9 offered protections for motor carriers in their utilization of Independent Contractors, its withdrawal means that you no longer have those protections for any DOL actions or audits. As such, please seek legal counsel if you intend to still pursue the now removed protective opinion practices.
WHD is withdrawing this opinion letter because it was issued “prematurely… based on a rule that has not gone into effect”—namely, the Final Rule on Independent Contractor Status Under the Fair Labor Standards Act (which was scheduled to take effect on March 8, 2021). This Final Rule was subject to President Biden’s January 20 regulatory freeze memo which asked the executive departments and agencies to delay the effective date of any non-emergency rule published in the Federal Register but not yet effective, pending review—and likely withdrawal or revision—by a department or agency head appointed or designated by the Biden administration.
It is anticipated that Biden’s DOL will conduct a thorough review of the many other FLSA opinion letters issued under the Trump administration. A number of those opinion letters are likely to be withdrawn in the months to come, as WHD aligns itself with the new administration’s agenda.
