NEW ADMINISTRATION BRINGS TURNAROUND ON WORKERS’, LGBTQ RIGHTS
A flurry of new rules and interpretations governing workplace rights issued in the waning weeks of the Trump administration have been reversed by the incoming Biden administration, while the rights of LGBTQ Americans to be free of discrimination has been recognized.
Executive Order expands protection for LGBTQ Americans
On his first day on the job, President Biden signed Executive Order 13988, extending the protections for LGBTQ people against discrimination in employment to other areas of federal law, including Title IX (education), the Fair Housing Act, and Section 412 of the Immigration and Nationality Act. The order follows last summer’s Supreme Court decision in Bostock v Clayton County, which stated the language in Title VII of the Civil Rights Act of 1964 barring discrimination “because of … sex” includes discrimination on the basis of sexual orientation or gender identity.
The Department of Housing and Urban Development, which enforces the Fair Housing Act, announced Feb. 11 that it would begin enforcing the anti-discrimination provisions that now exist under the FHA.
The Order reverses the approach of the Trump administration, which argued that, except in employment, federal laws prohibiting sex-based discrimination — even those that mirror the language of Title VII ruled on by the Supreme Court – only bar discrimination based on biological gender.
An End to Trump-Era Independent Contractor and Joint Employer Rules?
On March 11, the DOL announced it intended to rescind Trump-era rules on independent contractors and joint employers – the independent contractor rule had become final less than two weeks before President Joe Biden was inaugurated Jan. 20.
The rule on independent contractors, which was not slated to go into effect until March 8, would have made it a little easier for an employer to classify a worker as a contractor. Independent contractors, unlike employees, are not entitled to the minimum wage and overtime or to receive benefits like sick time, health insurance, or medical leave.
The Trump rule would have lifted two factors — the nature and degree of the worker’s control over the work and the worker’s opportunity for profit and loss to primary importance when deciding a worker’s status as employee or independent contractor. With that rule ready for interment, greater weight will be assigned other factors traditionally considered by the courts in determining independent contractor status.
Another Trump rule that tended to favor employers — by making it easier to avoid shared liability under the FLSA for workers who are hired by one organization to work at another (such as subcontractors) – is also on the chopping block.
The rule, which took effect in March 2020, was struck down last September in an opinion by a New York judge, who ruled the Trump-era rule was “arbitrary and capricious” because it ignored the FLSA’s broad definitions and failed to justify departures from prior interpretations. Despite this, several groups lauded the rule for providing more concrete guidance.
In the interim, the joint employer definitions of the FLSA will be construed broadly, holding corporations accountable for the labor practices of subcontractors, franchisees, staffing firms and others.
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By: Daniel A. Gwinn, Esq
Attorney and Counselor at Law
GWINN LEGAL PLLC
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