In keeping with President Biden’s apparent desire to transform the federal government into a wholly owned subsidiary of Big Labor, his appointees at the National Labor Relations Board (NLRB) and the Department of Labor (DOL) are pushing for rule changes under which more U.S. workers would be classified as regular employees — and, thus, more easily unionized — with fewer considered independent contractors.
Under the Administrative Procedure Act, an agency proposing a rule must give the public an opportunity to comment on the proposal. Then it must consider the comments it received and respond to the significant ones when it publishes a final rule.
In this case, the rules proposed by the NLRB and the Labor Department would replace standards previously adopted during the Trump administration and would expand definitions of employment in ways sought by labor unions.
The Fair Labor Standards Act, administered by the Wage and Hour Division, and the National Labor Relations Act, administered by the NLRB, apply to “employees.” Each law broadly defines the terms “employer” and “employee.”
The National Labor Relations Act enables unions to represent employees — but not independent contractors — while the Fair Labor Standards Act establishes minimum wage and overtime requirements for employees.
The wage and hour requirements of the Fair Labor Standards Act, the excessively complicated regulations of the Wage and Hour Division and the collective bargaining requirements of the National Labor Relations Act all give employers incentives to use independent contractors rather than employees when possible.
Oblivious to the role they play in encouraging the use of independent contractors, Biden’s operatives insist the “misclassification” of employees as independent contractors constitutes a national emergency.
In fact, a far greater threat is posed by the new regulations to the livelihoods of independent contractors in the gig economy just to appease Biden’s benefactors in Big Labor.
Both proposed rules reflect a desire to both boost union organizing and give employers less guidance, leaving them at the peril of enforcement agencies’ whims.
The Wage and Hour Division under the Biden administration has withdrawn more guidance opinion letters than it has issued.
The time period for commenting on the proposed rules has ended and both agencies received thousands of comments. Now they will take about a year to digest the comments and respond by either adopting their recommendations in the final rules or explaining why not.
Should the final rules fail to correct the deficiencies raised by the Freedom Foundation and other conservative organizations, such as the Institute for the American Worker, litigation challenging the regulations is a certainty.