The U.S. Department of Labor (DOL) has withdrawn two administrator’s interpretations that had been issued under the Obama administration and had defined “employer” expansively and “independent contractor” narrowly.

Administrator’s Interpretation (AI) No. 2015-1, adopted in 2015, defined “independent contractor” narrowly and AI No. 2016-1, adopted in 2016, interpreted “joint employer” broadly. “Since these AIs were published, only a handful of courts have adopted them as being the proper construction of the law,” he said. “That has not stopped the plaintiffs’ bar from trying to leverage the AIs as support for their cases, nor has it stopped the DOL from applying them in the course of its audits and investigations.”

“Even if the court reverses, because the Obama appointee Richard Griffin remains the NLRB’s general counsel, expect an appeal to the Supreme Court,” said Steven Suflas, an attorney with Ballard Spahr in Denver and Cherry Hill, N.J. “And because vacancies remain unfilled at the NLRB, it may be years before Browning Ferris Industries is overruled, so employers will remain bound by the current law.”

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