Will President-elect Donald Trump seek to repeal the Affordable Care Act once more, or will his administration opt for smaller-scale changes to the law? In this article, Alden Bianchi shares his predictions on the actions the incoming administration and Republicans may consider as they take control of the White House and Congress.
On October 11, 2022, the United States Department of Labor (DOL) issued its Notice of Proposed Rulemaking (NPRM) seeking to undo the Trump administration’s 2021 independent contractor regulations and revert to the six-factor economic realities test. While the test factors remain the same (for the most part), the DOL’s NPRM advances interpretations of the various factors that support employment status at every turn.
A Trump administration-era Medicare program is under increased scrutiny from progressive Democrats. According to this Politico article, the program is a “direct contracting model” that allows private companies to participate in Medicare. Some Democrats, however, say the program is opening up a lane for Medicare privatization.
“There’s a dynamic with the left that [the Center for Medicare & Medicaid Innovation] [has] to deal with for sure,” said McDermott+Consulting’s Mara McDermott.
Throughout US President Joe Biden’s first year in office, the Biden administration reversed numerous Trump-era policies, including those concerning the US Equal Employment Opportunity Commission, federal contractors, wage data and LGBTQ bias. In this Law360 article, McDermott Partner Rachel Cowen offers insight into how the friction between religious and LGBTQ rights will continue to play out throughout employment law.
The Biden administration is no longer defending a Trump administration H-1B visa regulation that would have made it more challenging for international students to work in the United States. As noted in this Forbes article, McDermott Partner Paul Hughes recently successfully argued on behalf of plaintiffs that the H-1B rule violated current law.
Over the past year, the regulatory backdrop around environmental, social and governance (ESG) investing has shifted. As McDermott Partner Brian J. Tiemann explains in these slides, the US Department of Labor (DOL) under the Trump administration dropped ESG terminology and set a high standard for considering factors other than purely financial projections for investment alternatives. However, the Biden administration’s DOL has said that it will not enforce Trump-era regulations or pursue enforcement actions against plan fiduciaries for failure to comply with those regulations.
International students will have an easier time obtaining H-1B status after a federal judge ended a Trump administration regulation that made the process more difficult.
According to this Forbes article, Trump administration officials increased H-1B denial rates via memos and policies that were later ruled unlawful. McDermott Partner Paul Hughes—who represented plaintiffs in an complaint for declaratory and injunctive relief—said a Trump administration move to end H-1B via lottery violated the law.
As US Congressional Democrats continue their advocacy for a pro-worker agenda, multiple bills and rules could bring about sweeping changes to the civil rights and labor protections for millions of workers. These include:
According to McDermott partner Ellen Bronchetti, the PRO Act, for example, would enshrine a strict ABC test into federal law that would analyze whether workers qualify as independent contractors.
“I think that because Biden has promised to strengthen worker protections and strengthen workers’ right to organize, I think employers need to keep a real close eye on this legislation or versions of the legislation or pieces that might get pulled out and put elsewhere,” Bronchetti said in an article published in Law360.
President Biden’s July 9, 2021, Executive Order—which seeks to increase competition throughout the American economy—takes aim at prescription drug prices. In this article, published in Law360, McDermott partner Emily Jane Cook says Biden’s focus on drug prices is unsurprising given the “significant public interest and frustration” with drug costs.
Businesses strive to draw the line correctly on who is an employee versus who is an independent contractor. New regulations issued by the Department of Labor (DOL) in early January promised to help. See, 29 CFR §§795.100. But by late January, those regulations under the Fair Labor Standards Act (FLSA) were frozen.
Unlike laws passed by Congress, administrative regulations are far more easily altered when a new president takes office. The regulations published by President Trump’s DOL in January had an effective date of March 8, 2021. Now, President Biden’s DOL will have an additional 60 days beyond that effective date to announce what will happen next.
Those new regulations provided a much simpler test for classifying workers. While including five factors, the results turned on two of those factors: (1) the nature and degree of the worker’s control over the work and (2) the worker’s opportunity for profit/loss based on personal initiative or investment. Most significantly, those regulations focused on the actual practices, rather than what may be possible.
This same issue may also arise under other federal statutes as well as state laws, including those governing on whom unemployment insurance taxes must be paid. With multiple statutes (each with its own distinctive test), drawing the line between independent contractors and employees correctly turns not only on meeting whatever the ultimate FLSA test turns out to be.
The most difficult is the so-called ABC test:
That is the test that is embedded in proposed federal legislation: the Protecting the Right to Organize (PRO) Act. That is also now the official test for most jobs under most California laws.
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