Earlier this month, the Department of Labor, under its new Secretary, Alexander Acosta, officially withdrew Obama-era guidance letters related to FLSA claims and joint employer liability for same. The letters, issued in 2015 and 2016, provided guidance on classification of employees as independent contractors, and when joint employers may be liable for misclassification.
In its withdrawal statement, the DOL said that nothing in the application of the FLSA would change despite the withdrawal of these (non-binding) letters. This statement is probably true in the Sixth Circuit, as the court has not previously cited to them in support of any ruling on an FLSA claim. There are, however, other courts in the country that have used these letters as persuasive authority in making findings under the FLSA. Accordingly, we could see small shifts in other jurisdictions’ application of the FLSA based upon this withdrawal.