Biden Independent Contractor Plan Sends Confusing Message

Richard Reibstein, a Partner in Locke Lord’s Labor and Employment Practice in New York and co-head of the Firm’s Independent Contractor Misclassification and Compliance Practice, authored an article for Law360 examining President-elect Joe Biden's recently issued comprehensive labor plan titled "The Biden Plan for Strengthening Worker Organizing, Collective Bargaining and Unions.” Reibstein notes that the plan seems to focus on empowering unions but also includes a proposal addressing the misclassification of independent contractors. According to Reibstein, the Biden Plan is internally inconsistent in the incoming administration’s plans to address this misclassification issue.

Reibstein writes: “The first reference to independent contractors in the Biden plan reflects the bipartisan position that the Biden administration should vigorously enforce existing laws against employers that intentionally misclassify employees as independent contractors. Yet later on in the proposal, the Biden plan specifically endorses the recent California law that establishes a new test for independent contractor status, which changed decades of settled law in that state.”

He ultimately concludes that “Regardless of what transpires in the area of independent contractor law in Washington, D.C., once the Biden administration is sworn in, businesses that use independent contractors should reexamine their level of compliance with such laws at the federal and state levels and take steps to minimize misclassification liability.”

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