DOL Extends Indie Contractor Rule Comment Period

The Labor Department has extended the comment period on its new independent contractor rule by 15 days, to Dec. 13.

The original comment period deadline was Nov. 28.

The Financial Services Institute asked the Labor Department on Monday to extend the comment period on its new independent contractor rule from 45 to 90 days — with comments due by Jan. 12.

Labor released on Oct. 11 a proposed rule that would replace the existing 2021 test under the Fair Labor Standards Act used to determine worker classification as either an independent contractor or an employee.

The new Labor rule would replace the 2021 rule that went into effect as a result of a ruling in March by the U.S. District Court for the Eastern District of Texas that Labor’s delay and withdrawal of its independent contractor rule violated the Administrative Procedure Act.

The proposed rulemaking, Employee or Independent Contractor Classification Under the Fair Labor Standards Act, published in the Federal Register on Oct. 13, is 58 pages and requires comments by Nov. 28, “the first business day after the Thanksgiving holiday,” David Bellaire, FSI’s general counsel, told Labor in a comment letter.

“It is critical that those impacted by this proposal have ample time to review, analyze and provide meaningful comments to ensure that DOL has the benefit of the public’s input,” Bellaire wrote.

The proposed rule, Bellaire continued, “is of great importance to FSI members, who choose to be self-employed independent contractors.”

An extension of the comment period is appropriate in this case, Bellaire said, “because it brings the timeline in conformity with Executive Order (EO) 12866, which states that ‘each agency should afford the public a meaningful opportunity to comment on any proposed regulation, which in most cases should include a comment period of not less than 60 days.’”

With the proposal of this new rule, Bellaire said, “DOL continues a back-and-forth on the issue of worker classification, creating regulatory tumult just as those affected had adjusted to the reinstatement” of the previous independent contractor rule.

Bellaire told ThinkAdvisor on Oct. 21 in an interview that Labor’s new rule “stands to create a major headache for financial advisors.”