The U.S. Department of Labor (DOL) recently announced that the Obama-era administrative interpretations regarding joint employment and the classification of a worker as an independent contractor or employee has been withdrawn.

The guidance regarding the independent contractor classification had indicated that most workers were employees, and not independent contractors.  As for the interpretation of joint employment, which can arise when people work for 2 or more entities which share control over the individuals’ work, the withdrawn guidance had reflected that the concept of joint employment, like employment generally, should be defined “expansively” under the Fair Labor Standards Act.

However, with its announcement that its guidance on these matters was being withdrawn, the DOL also announced that it will continue to “fully and fairly” enforce all laws within its jurisdiction (including the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act), and that the withdrawal doesn’t change the legal responsibilities of employers under these laws, as reflected in the DOL’s long-standing regulations and case law.  Therefore, the effect of this withdrawal on the DOL’s prior interpretations that were outlined in the guidance is not clear.

The situation is further muddied by the National Labor Relations Board, which continues to view joint employment broadly.  Accordingly, employers should be careful not to attach broad significance to the DOL’s withdrawal of its administrative interpretation on that issue.

It appears that the situation may be fluid, as the new administration in Washington leans toward a narrower interpretation of “employment.”  Expect more developments to follow on both joint employment and the rules determining whether a worker is viewed as an independent contractor or as an employee.