Joint Employer Rule Moves DOL Backwards
August 23, 2019
The Trump administration has announced many harmful rules changes in the last several months, including Joint Employer rule change explained below. This blog follows our previous blog about the Trump administration’s proposal to re-define the poverty line. Read that blog here.
Proposed Joint Employer Rule Change
On June 25, 2019, the Department of Labor (DOL) closed its commenting period on a proposed rule that would alter Section 791 of the Fair Labor Standards Act (FLSA), which governs joint employer liability. The proposed rule would create a four question standard to determine if one is legally considered a joint employer and is liable for their employees, making it dramatically more difficult to hold putative employers accountable.
In its current form, the FSLA stipulates that employers must be “not completely disassociated” in order to be considered joint employers who share liability of an employee. The DOL’s plan is to update this criteria based on a Court of Appeals case Bonnette vs. California Health and Welfare Agency (1982), to include a higher standard that requires employers to share direct control over an employee in order to be considered liable. Under this standard, to be considered a joint employer, one must have the power to 1) hire or fire the employee 2) supervise and control the works schedule of conditions of employment 3) determine the employee’s rate and method of payment and 4) maintain the worker’s employment record. In 2015, the D.C. Circuit Court ruled in the case Browning-Ferris Industries of California vs. National Labor Relations Board (NLRB) that indirect control of an employee is sufficient to qualify someone as a joint employer. Despite this more recent precedent, the Trump Administration is trying to revert back to this outdated legal framework from the 1982 Bonnette case.
By adopting this higher standard, the DOL would make it nearly impossible to prove that a putative employer should be considered a joint employer and thus held accountable for their employee’s treatment. American workers in contract labor positions often work under the jurisdiction of someone who does not directly control the terms of their employment, but oversees their daily activities and work environment. Holding people in these positions accountable for workplace conditions, treatment and environment of the people working under them would become extremely difficult to litigate against if the DOL goes through with the proposed change. Unjust conditions such as organizing restrictions, discrimination, and harassment would all essentially become state-sanctioned. Moreover, collective bargaining would become obsolete, as only employers are legally required to allow workers to bargain. As a result, this rule change has the potential to radically shift work-place power dynamics more heavily in favor of employers at the expense of employees’ rights and protections.
Every person has the right to work in a safe and nurturing work environment. By making harder to prove that putative employers should be considered joint employers, it will be increasingly difficult to ensure employees work in fair conditions. Pope Francis reminds us that we must create moral and ethical economies which protect workers and our environment. The DOL’s proposal only further elevates the managerial class at the expense of workers, who deserve equal protections and enforcement by the government. We cannot operate businesses in good faith without ensuring there are strong mechanisms in place to protect employees.
This proposed rule change represents the Trump administration’s continued efforts to chip away at worker protections and undermine the working class. At NETWORK, we recognize the dignity of all workers. We acknowledge the gross injustices at hand in the American workforce. We will continue to stand in solidarity with workers and organized labor to put an end to the rampant injustice that further weakens the most vulnerable and powerless in our society.
Elisa McCartin is a NETWORK volunteer and student at Georgetown University.