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Federal Register / Vol. 86, No. 23 / Friday, February 5, 2021 / Proposed Rules Comments: Submit comments through the Federal eRulemaking Portal at http www.regulations.gov. Follow the instructions for submitting comments.
Mail: Address written submissions to Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S
3502, 200 Constitution Avenue NW, Washington, DC 20210. Instructions:
Please submit only one copy of your comments by only one method.
Commenters submitting file attachments on www.regulations.gov are advised that uploading text-recognized documents i.e., documents in a native file format or documents which have undergone optical character recognition OCR
enable staff at the Department to more easily search and retrieve specific content included in your comment for consideration. Anyone who submits a comment including duplicate comments should understand and expect that the comment will become a matter of public record and will be posted without change to https
www.regulations.gov, including any personal information provided. All comments must be received by 11:59
p.m. on February 24, 2021, for consideration in this proposed delay of effective date. The Department strongly recommends that commenters submit their comments electronically via http
www.regulations.gov to ensure timely receipt prior to the close of the comment period, as the Department continues to experience delays in the receipt of mail.
Submit only one copy of your comments by only one method. Docket: For access to the docket to read background documents or comments, go to the Federal eRulemaking Portal at http
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Amy DeBisschop, Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S
3502, 200 Constitution Avenue NW, Washington, DC 20210; telephone: 202
6930406 this is not a toll-free number. Copies of this proposal may be obtained in alternative formats Large Print, Braille, Audio Tape or Disc, upon request, by calling 202 6930675 this is not a toll-free number. TTY/TDD
callers may dial toll-free 1877889
5627 to obtain information or request materials in alternative formats.
SUPPLEMENTARY INFORMATION: On January 7, 2021, the Department of Labors Wage and Hour Division WHD published the Independent Contractor Rule in the Federal Register with an effective date of March 8, 2021.
See 86 FR 1168. The Independent
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Contractor Rule would, among other actions, introduce into title 29 of the Code of Federal Regulations a new part part 795 entitled Employee or Independent Contractor Classification under the Fair Labor Standards Act.
See id.
In a memorandum dated January 20, 2021 and entitled Regulatory Freeze Pending Review, published in the Federal Register on January 28, 2021
86 FR 7424 Regulatory Freeze Memorandum, the Assistant to the President and Chief of Staff, on behalf of the President, directed the heads of Executive Departments and Agencies to review and consider delaying the effective dates of all regulations that had been published in the Federal Register but had not yet taken effect until 60
days following the date of the memorandum or beyond. The Independent Contractor Rule falls within this category. The Regulatory Freeze Memorandum states that the purpose of such delays is for agencies to review any questions of fact, law, and policy that the rules may raise. The memorandum notes certain exceptions that do not apply here. On January 20, 2021, the Office of Management and Budget OMB also published OMB
Memorandum M2114, Implementation of Memorandum Concerning Regulatory Freeze Pending Review, which provides guidance regarding the Regulatory Freeze Memorandum. See M2114, Implementation of Memorandum Concerning Regulatory Freeze Pending Review, https www.whitehouse.gov/
wp-content/uploads/2021/01/M-21-14Regulatory-Review.pdf last visited Jan.
26, 2021. OMB Memorandum M2114
explains that pursuant to the Regulatory Freeze Memorandum, agencies should consider postponing the effective dates for 60 days and reopening the rulemaking process for rules that have not yet taken effect and about which questions involving law, fact, or policy have been raised. Id. In accordance with the Regulatory Freeze Memorandum and OMB Memorandum M2114, WHD proposes to delay the effective date of the Independent Contractor Rule to May 7, 2021, which would be 60 days beyond its original effective date.
The delay of the Independent Contractor Rules effective date would give WHD additional opportunity to review and consider the rule as the Regulatory Freeze Memorandum and OMB Memorandum M2114
contemplate. The rule, which would be WHDs first generally applicable regulation addressing the question of who is an independent contractor and,
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thus, not an employee under the FLSA, would adopt a new legal standard for determining employee and independent contractor status under the FLSA. In light of the significance of this change, WHD is proposing to allow itself more time to further review and consider, among other important issues, the legal, policy, and/or enforcement implications of adopting that standard, such as:
Whether the rule effectuates the FLSAs purpose, recognized repeatedly by the Supreme Court, to broadly cover workers as employees; 1 the costs and benefits attributed to the rule, including the assertion that workers as whole will benefit from the rule; 2 and/or whether the rules explanation of the standard provides clarity for stakeholders and for the purposes of WHD enforcement, as was intended.
In addition, WHD believes that the proposed delay is reasonable and would not be disruptive. The Independent Contractor Rule is not yet effective, and WHD has not implemented the rule. For example, WHDs public guidance, including its longstanding Fact Sheet 13, entitled Employment Relationship under the Fair Labor Standards Act FLSA, does not contain the rules standard for determining whether a worker is an employee or independent contractor and will continue to be available to all. Moreover, Federal courts across the country have developed and applied legal analyses for determining employee and independent contractor status under the FLSA. In sum, employers and workers are already familiar with the standard that WHD and courts will apply when determining a workers status under the FLSA during any delay of the rules effective date.
WHD seeks comment on its proposal to delay the Independent Contractor Rules effective date to May 7, 2021 in order to further review and consider the rule. WHD will consider only comments about its proposal to delay the rules effective date.
Milton A. Stewart, Acting Secretary of Labor.
FR Doc. 202102484 Filed 2321; 11:15 am BILLING CODE 451027P

1 See, e.g., Rutherford Food Corp. v. McComb, 331
U.S. 722, 728 1947 The FLSA definition of employ is broad.; United States v. Rosenwasser, 323 U.S. 360, 36263 1945 A broader or more comprehensive coverage of employees than that of the FLSA . . . would be difficult to frame..
2 See 86 FR 1209, 1223.

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