The Department of Labor announced today that it has withdrawn two memos (so-called Administrator’s Interpretations, or AIs) issued by David Weil’s Wage and Hour Division in 2015 and 2106. The first AI concerned the definition of employment under the Fair Labor Standards Act and helpfully clarified existing law regarding the distinction between employees and independent contractors. The second AI dealt with the related question of how to determine joint employment relationships under the Fair Labor Standards Act and the Migrant and Seasonal Worker Protection Act. We analyzed (and lauded) the first AI here and the second one here. The DOL appears to have removed the AI’s from their website; they’ll remain available here and here.
Two points. First, the AIs interpret existing law – they don’t make new law – and so the DOL’s action today doesn’t formally change anything. Second, removing the Weil memos does, however, signal the direction that this Department of Labor intends to head. For one thing, it indicates that Acosta’s DOL may refuse to interpret broadly the definitions of employment and joint employment under statutes that are meant to be read broadly. For another thing, it indicates a backtracking on the Department’s efforts to provide compliance assistance in two critical, and complicated, areas of employment law.