Legislative lowdown: 3 areas to watch as DOL carries out its regulatory agenda

The Department of Labor (DOL) recently announced its intention to roll back a number of Biden-era policies in a recently published regulatory agenda.

Among the policies that the DOL is set to revisit are a 2024 rule for determining workers’ independent contractor status, regulations for determining joint-employer liability, and protections for nonimmigrant workers in the agricultural sector.

“This regulatory agenda reflects our steadfast commitment to restoring economic opportunity by fostering innovation and reducing unnecessary burdens on employers,” Keith Sonderling, deputy secretary of labor, said in a statement.

Here are three areas to keep an eye on as the DOL carries out its agenda.

Independent contractor status. The DOL said it intends to rescind a rule for determining independent contractor status that took effect in March 2024.

That rule restored a “multifactor economic reality test” for determining if an employee is an independent contractor, directing businesses to take into account a number of considerations, without any one factor taking precedence over another. It was expected to make it harder for companies to classify workers as independent contractors—a status that typically lacks benefits such as minimum wage, overtime, and unemployment insurance.

The DOL cited five legal challenges concerning the rule, and said it was “considering how it will proceed” with regard to this classification under the Fair Labor Standards Act going forward.

Joint-employer liability. When Joe Biden was in office, the National Labor Relations Board (NLRB) tried unsuccessfully to implement a rule that would’ve made it easier for two businesses to be considered a joint-employer of a group of employees. It was expected to have a significant impact on franchisors and businesses that hire through staffing firms, with particular implications for union organizing efforts.

The NLRB ultimately dropped the rule after a federal judge in Texas struck it down.

Now, the DOL said it’s considering rulemaking to address circumstances when a business can be held liable as a joint employer, with an eye toward helping “promote greater uniformity among court decisions nationwide.”

Protections for H-2A workers. In July, the DOL issued a proposed rule that seeks to rescind Biden-era regulations designed to enhance labor protections for agricultural workers who are employed under the H-2A visa program—typically “temporary foreign” workers under a nonimmigrant status.

The DOL is seeking to rescind a provision of a rule issued in 2024 that required employers to meet certain conditions in order to fire an H-2A worker “for cause,” as well as a section that broadened the types of workplace activities such workers may engage in without being retaliated against, among others.

In its statement, the DOL called such requirements “burdensome,” and noted that some have been blocked by the courts.

The comment period for this proposed rule ended on Sept. 2.