Labor Secretary nominee Julie Su continues to face close scrutiny by Republican members of the Senate Committee on Health, Education, Labor, and Pensions, at least some of whom believe she is not qualified for the position. Notably, however, during the Committee hearing on her nomination, Su plainly stated that , in her view, the DOL has no intention of seeking to implement the “ABC” test for determining independent contractor status, or of issuing a new joint employer rule.

The “ABC” test currently is used by a handful of states, most notably California, to determine whether an individual is properly classified as an employee or an independent contractor, and is a considerably stricter test for establishing independent contractor status than that's currently applied under the FLSA. During the Committee hearings, Su noted that any change to the independent contractor analysis currently adopted by the DOL would require Congress to implement. Notably, the DOL issued a Notice of Proposed Rulemaking in 2022 to both withdraw a Trump-era Final Rule regarding the independent contractor analysis and to publish a new rule. The proposed rule, which has yet to be finalized, would return to the multi-factor analysis used by the Department for decades and which, in some variation or another, has been used by the federal courts throughout that time.

Similarly, Su testified that currently, the DOL has no intention of issuing a new joint employer rule. The DOL likewise withdrew a Trump-era rule on the issue (subsequently vacated in large part by a New York federal court) and Su stated that the analysis is “fact-specific test” that will continue to “stand [ ] based on case law that has been developed over several decades.”

In addition to the pending nomination of Su as Secretary of Labor, Biden’s nominee for the head of the DOL’s Wage and Hour Division, Jessica Looman, remains to be confirmed by the full Senate, having been favorably reported out of the Committee.

Jackson Lewis will continue to monitor and report any updates on these DOL developments.