Joint Employment, Gig Economy, And Misclassification
Biden’s platform touts that he will put a stop to employers intentionally misclassifying their employees as independent contractors. His administration would drive an “aggressive, all-hands-on-deck” enforcement effort to curb misclassification, in part by harnessing the power of multiple federal agencies (NLRB, EEOC, IRS, and DOJ) to work in tandem with state tax, employment, and labor agencies to identify and address disputes. He has indicated that he is in favor of a California-like ABC test to be implemented on a national level. Biden also notes that he would extend the right to organize and bargain collectively to independent contractors by modernizing antitrust law.
The Trump Department of Labor has been aggressive in proposing regulations to make it harder for workers to claim they are joint employees of multiple organizations and easier for hiring entities to classify workers as independent contractors. However, the joint employer regulation now stands overturned by a federal court and is facing an uncertain fate, while the misclassification rule is almost certain to be challenged in court before taking effect. Moreover, the effect of the misclassification rule is severely diminished by the fact that many states have enacted their own legal standards (such as California’s ABC test) that stand untouched by federal law. This is yet one more battle that will be primarily fought at the state level and remain somewhat blunted by the next administration.
And now, a caveat: the ambitious agendas outlined by both candidates could face resistance in Congress. Even if Biden prevails and takes control of the White House, the balance of the Senate could easily remain in control of the GOP. And even if a Democratic majority emerges in the Senate in January 2020, we cannot be sure that Biden will fall in line with progressive causes touted by the liberal wing of the party. He has sought to characterize himself as a restrained “bridge building” candidate that can be tolerated by centrist Democrats and moderate Republicans.
Read the full story at Trump v. Biden: A Workplace Law Preview | Fisher Phillips – JDSupra