Washington — A pair of key Democrats on the House Education and Workforce Committee are calling on the Department of Labor to withdraw proposed changes to its rule on determining joint employer status.
In a June 22 letter addressed to acting Labor Secretary Keith Sonderling, Reps. Bobby Scott (D-VA), the committee’s ranking member, and Ilhan Omar (D-MN), ranking member of the House Workforce Protections Subcommittee, wrote: “As you may be aware, in recent years, an increasing number of workers are employed by intermediaries as leased employees and permatemps, and by subcontractors, rather than directly employed. The proposed rule conflicts with Congress’ intent to define the employment relationship broadly to better protect these types of workers from substandard labor conditions.”
The pair note that a 2020 attempt by the Trump administration to change the “joint employment” rule was found to be unlawful by a federal court under the Administrative Procedure Act of 1946. That proposed rule covered only the Fair Labor Standards Act of 1938.
The current proposed rule would apply the narrower definition of a “joint employer” to the Family and Medical Leave Act of 1993 and the Migrant and Seasonal Agricultural Worker Protection Act of 1983, as well as the FLSA.
“The proposed rule attempts to navigate around this previous court ruling by considering those four factors (the joint employer hires or fires the employee, supervises and controls the employee’s work schedule or conditions of employment to a substantial degree, determines the employee’s rate and method of payment, and maintains the employee’s employment records) as more dispositive than others, and other factors – including those that could establish economic dependence or indirect control – will only be considered when the department deems it necessary,” the lawmakers write.
“However, by still uniformly considering certain factors as more important than others, the proposed rule undermines the intent of a more holistic consideration of all factors that could establish joint-employer liability.”
Scott and Omar also contend the proposal would:
- Create confusion in the courts and undermine DOL’s enforcement actions.
- Threaten the wages of U.S. workers.
- Hurt small businesses operating under the franchise model.
“By limiting who an employee can hold responsible for federal labor law violations, the department’s proposal would shield larger businesses whose business model relies on subcontracting with thinly capitalized subcontractors or farm labor contractors that cut corners on federal labor law compliance,” the letter states. “If the thinly capitalized subcontractor or farm labor contractor is unable to pay back wages or judgments owed, then workers would be unable to recover from any employer.”
