*UPDATE – THE FINAL RULE HAS BEEN WITHDRAWN MAY 6, 2021.

Regardless of whether you call it a teeter totter or seesaw, the DOL continues its ups and downs with its interpretations of important laws. You may recall my January 7, 2021 post reminding all y’all of the U.S. Department of Labor (“DOL”) final rule regarding the DOL’s adoption of the “economic reality test” for determining whether a worker is an employee or independent contractor.  That new rule was set to go into effect March 8, 2021. However, the Biden Administration issued a regulatory freeze, postponing all effective dates for any rules not yet in effect. Accordingly, on February 5, 2021, the DOL delayed the effective date to May 7, 2021. However, I will not be surprised if the DOL scraps the economic reality test (and the new rule altogether), in favor of the three-prong “ABC test” used by California (the home state of Julie Su, Biden’s nominee for DOL Deputy Secretary). The ABC test presumes that a worker is an employee unless the employer proves otherwise. So, stay tuned as the teeter is tottering. Or is the see-sawing?