Worker classification comments accepted through April 12

April 9, 2021

Mark Schremmer


The public has only a few days remaining to comment on the U.S. Department of Labor’s decision to withdraw a final rule regarding worker classification.

In March, the Labor Department announced its plans to rescind the previous administration’s “Independent Contractor Status Under the Fair Labor Standards Act” rule, which had been set to take effect on March 8.

Comments will be accepted through Monday, April 12.

In a March news release, the department said the rule would “significantly weaken protections to American workers under the Fair Labor Standards Act.”

The worker classification rule attempted to tackle worker classification by proposing an “economic reality” test to determine whether a worker is an employee or an independent contractor under the Fair Labor Standards Act.

The Labor Department said it plans to withdraw the rule for several reasons.

The rule adopted a new “economic reality” test to determine whether a worker is an employee or an independent contractor under the FLSA.
Courts and the department have not used the new economic reality test, and FLSA text or longstanding case law does not support the test.
The rule would minimize other factors considered by courts traditionally, making the economic test less likely to establish that a worker is an employee under the FLSA.

As of April 9, the docket already included many comments from truck drivers and freelance writers, who are asking the Labor Department to reconsider withdrawing the rule.

“Leave trucking alone,” wrote Kevin Smith. “This law and (the ABC Test) will do nothing but tax the whole population and force truckers into never being able to expand or work toward their own authority. The way banking is now, it guarantees maximum taxes will be paid to keep the ability to borrow money. This change is to do nothing but make the mega fleets stronger as well as the unions while wiping out small businesses.”

Many of the comments from freelance writers focused on their need to set their own hours.

OOIDA said it was disappointed by the decision to completely withdraw the rule.

“It’s frustrating to see the department has decided to completely withdraw the independent contractor rule,” said Bryce Mongeon, OOIDA’s director of legislative affairs. “As we told them when they announced the delay to the rule, there are some improvements that should have been made, and overall, the rule would likely have provided some new certainty for owner-operators. This is a missed opportunity for the department to make changes that address the specific concerns of owner-operators.”

OOIDA plans to file formal comments on the withdrawal next week.

Comments may be made by going to the website and entering Docket No. WHD-2020-0007-3317.

ABC Test

Worker classification has been a hot topic in recent years with much of the controversy surrounding California’s adoption of the restrictive ABC Test. OOIDA stressed the diversity of the trucking industry and mentioned that the owner-operator model in trucking predates recent developments in app-based work opportunities. The PRO Act is another controversial piece of legislation based on the ABC Test.

“We believe that the department’s approach in the final rule is more practical than proposals like the ABC Test,” OOIDA wrote.

OOIDA acknowledged that worker classification can be a difficult needle to thread in the trucking industry but said the rules should protect misclassified truckers without destroying the entire owner-operator model.

“Trucking is a challenging career, and there are many changes that should be made to improve compensation and working conditions for drivers,” OOIDA wrote. “The department must recognize that some truck drivers are certainly misclassified and support efforts to combat this. Addressing these issues can be accomplished with adjustments to the final rule instead of a wholesale rejection of the leased owner-operator model.” LL