The Standing of the Dept of Labor’s (DOL) Joint Employer Rule and Biden’s Employment Legislation Agenda

Proper after Joe Biden took workplace because the forty sixth President of the USA we wrote a weblog publish detailing anticipated modifications in employment legislation with the brand new administration. This weblog publish is a follow-up to our first publish; we’ll focus on the change in guidelines which were applied and what’s nonetheless to come back.

Joint Employer Ruling

In July 2021, the Division of Labor (DOL) introduced its plans to rescind a rule on Joint Employer Standing beneath the Honest Labor Requirements Act from March of 2020. The motion, which eliminated the laws that have been established within the 2020 ruling, went into impact on September 28, 2021. 

The 2020 rule contained requirements for joint employers who adopted each vertical and horizontal joint employment.

Vertical joint employment is when an worker works for one employer, similar to a staffing company, however is economically depending on one other enterprise — mostly, the staffing company’s consumer — for whom they supply their providers for.

Horizontal joint employment occurs when an worker is employed by multiple distinct employer.  

Vertical and horizontal joint employers are collectively and severally answerable for complying with Wages and the Honest Labor Requirements Act (FLSA) provisions for wage and hourly pay.

The 2020 Rule created 4 key factors that may very well be used to assist decide whether or not an employer is taken into account a vertical joint employer: 

  • Whether or not the employer hires or fires the workers,
  • Is accountable for creating and sustaining worker work schedules or circumstances of employment to a big diploma,
  • Determines price and methodology of fee for workers, and
  • Maintains the employment information of workers. 

When it comes to horizontal joint employment, the 2020 Guidelines famous: 

  • If employers are performing independently of each other and are disassociated when it comes to the employment of the worker, they don’t seem to be thought of joint employers, however
  • If the employers are sufficiently related when it comes to the employment of the worker, they’re thought of joint employers and subsequently are required to mixture the hours labored by workers to make sure FLSA compliance.

Beneath the unique rule, which is at present in impact after the rescissions of the 2020 rule, it’s anticipated that extra companies shall be discovered to joint employers.

Different labor legislation modifications that President Biden has enacted or that we’re nonetheless ready for him to enact embrace:

Minimal Wage

President Biden has lengthy touted his plans to boost the minimal wage. In April 2021, he put these phrases in motion when he signed an govt order requiring federal contractors and subcontractors to pay workers a minimal of $15/hour by January 2022.

The minimal wage for contractors is at present $10.95 beneath a rule that was enacted by the Obama administration in 2014.

The federal minimal wage for non-government contractors remains to be $7.25 an hour, though many cities and states are creating legal guidelines to set their minimal wages increased. The Home of Representatives has additionally even handed a invoice to boost the federal minimal wage to $15/hour by 2025. Nonetheless, the laws has nonetheless not superior within the senate.

Anti-Discriminatory and Inclusive Practices

Employers ought to count on increasing protections within the office for girls, minorities, and the LGBTQ+ group. 

In January 2021, President Biden signed Govt Order 13988. The provisions of the invoice are supposed to fight and stop discrimination on the idea of gender identification and sexual orientation. The order applies to govt and unbiased federal businesses.

Biden additionally helps H.R. 5, the Equality Act, which handed the Home in February of 2021. This act takes it one step additional than Govt Order 13988 by outlining Title VII’s prohibition on employment discrimination based mostly on an individual’s intercourse by together with “due to sexual orientation or transgender standing.”

The act amends Title VII and different civil rights legal guidelines to ban discrimination based mostly on sexual orientation and gender identification.

The act expanded the definition of the time period “intercourse” to incorporate: 

  1. A intercourse stereotype
  2. Being pregnant, childbirth, or a associated medical situation
  3. Sexual orientation 
  4. Gender identification
  5. Intercourse traits, together with intersex traits 

We’re nonetheless ready for the passage of the Equality Act, which isn’t assured because it requires 60 votes to beat an anticipate Republican Senate filibuster. However, it’s nonetheless a good suggestion for employers to assessment and revise all discrimination insurance policies.

The Biden administration can also be making strikes when it comes to spiritual discrimination, rescinding a Trump-era rule broadening exemptions for federal contractors. This transfer will deliver anti-discrimination protections extra in step with these of previous administrations. Within the proposal, DOL argued the Trump-era rule “departs” from customary interpretations of civil rights legal guidelines that ban employment discrimination that presidents have expanded because the Nineteen Forties.

When you’ve got any questions, feedback, or considerations about these modifications or what’s to come back, our agency gives in-person and digital consultations. We’re additionally obtainable for any company, businessemployment or household legislation points. Please name our workplace at 305-460-0145 to schedule a session.

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