Yesterday, the Labor Department announced a proposal that seeks to limit the claims that gig economy and similarly situated workers (like those in construction and home care) have to be considered as employees rather than independent contractors under the law. As multiple OnLabor commentators have remarked (here, here, and here), the stakes for employee classifications are high. Workers who are classified as independent contractors, rather than employees, do not get paid a minimum wage or have access to benefits like overtime and workers’ compensation.
The interpretive rule says that the two factors that must be most heavily considered – when evaluating whether or a worker should be considered an employee or independent contractor – are the ones that focus on the control that the company has over how the worker performs their job and the opportunity that a worker has to profit on the job based on initiative. The rule claims to only cover the laws that the Labor Department enforces, such as federal minimum wage and overtime rules, and not other federal agencies. States will also be free to make their own determinations, like California has done recently. However, this ruling could be significant, given that many employers throughout the country tend to follow the Department of Labor’s guidance.
While Secretary of Labor Eugene Scalia stated in a comment that the proposal aims “to bring clarity and consistency to the determination of who’s an independent contractor,” worker advocates, like Catherine Ruckelshaus, general counsel of the National Employment Law Project, say that this rule actually narrows the existing test. Labor Department officials have said that the proposal will be published on the Federal Register soon and opened up to the public to provide feedback for 30 days.
There continues to be efforts on Capitol Hill to bring awareness to multiple issues surrounding worker job security and workplace safety during the pandemic. Representatives from airline companies and employee unions have been lobbying House and Senate members for an extension to the COVID-19 aid package to prevent the mass layoffs in the airline industry that are coming on October 1. As one may recall, the original coronavirus package passed in March provided airline companies with $25 billion in payroll assistance with the stipulation that they could not lay off their workers. Though there has been pressure placed on incumbent Senate Republicans who represent states with airline hubs (like Georgia, Arizona, and Colorado) other votes – on issues like a new Supreme Court Justice – have instead moved to the forefront. As of right now, American Airlines and United Airlines have already stated that they will have to furlough or lay off thousands of workers on October 1st. Delta Air Lines and Southwest Airlines has said they will try to avoid cuts.
There have also been efforts in the Senate to hold the Occupational Safety and Health Administration (OSHA) accountable for their lack of oversight of meat plants during the pandemic, as On Labor has previously mentioned. In a letter released yesterday, Senators Elizabeth Warren and Cory Booker denounced OSHA over their ineffective response in failing to adequately protect their workers during the pandemic. Focused on OSHA’s delayed fining of Smithfield Foods Inc., a pork plant, and JBS Foods, a beef plant, the Senators wrote that the workers “did not have to get sick due to Smithfield’s and JBS’s disregard for workers’ health” and that the agency “could have acted swiftly to require that these workplaces made changes.” According to the Food and Environmental Reporting Network, more than 42,000 workers at 496 meat-packing plants have tested positive for the virus, and 203 have died.
There have also been labor efforts occurring off the Hill throughout the country. California members of the UNITE HERE union, which is comprised of workers in the hospitality, food service, and travel industries, lobbied directly to Governor Gavin Newstrom in Sacramento yesterday about signing AB 3216. This bill, introduced by Assemblymember Ash Kalra and referred to as the “right to recall” legislation, provides preferential treatment to workers that were laid off because of COVID-10 when rehiring begins. Unsurprisingly, the bill has widespread union support but has faced strong opposition by multiple business organizations. State Senator Maria Durazo stated the following on behalf of the union workers: “The government has a responsibility to make sure that as businesses reopen, they reopen in a fair way. We need AB 3216 to make sure they hire back the workers who’ve served them for so many years and got laid off through no fault of their own.”
Meanwhile, members of the Alliance of Motion Picture and Television Producers, a union that represents over 350 American television and film production companies, have been successful in reaching agreements to protect their workers. In what is being lauded as a “hallmark” agreement, the agreement focuses on how entertainment industry members can return to work in the midst of the COVID-19 pandemic. It includes guarantees like quarantine pay, paid sick leave, comprehensive testing regimens, frequent testing, and continual COVID monitoring and enforcement. This effort was made possible after workers unions’ adopted a set of protocols for their members, a plan called a “Safe Way Forward”, that included “strictly enforced testing regimens and safety protocols, a zone-based system, and diligent use of personal protective equipment (PPE)” in June.
Finally, in response to recent efforts by conservative and Republicans to articulate their support for workers and labor issues, Paul Prescod, a high school social studies teacher and member of the Philadelphia Federation of Teachers, wrote an op-ed in Jacobin to respond to those claims. His article focuses on President Trump’s role in appointing four Republicans to the National Labor Relations Board (NLRB) to make a Republican majority. Since the majority has been in place, he argues, it has advanced an anti-worker agenda that has overturned NLRB precedent in more than a dozen cases to benefit employers.