While new rulemaking is a possibility, Murphy said it would take months to develop and work through the administrative process, and it would also likely be challenged in court. For example, he noted that a rule adopting the ABC test “would upend decades of past practice, including U.S. Supreme Court precedent.”
Additionally, Murphy advised employers to “continue on a moderate path,” meaning they should use the time before any new rule can be finalized to ensure their contractor relationships are appropriate in terms of what is theoretically possible under a contract and how the worker is actually performing services.
