Category Archives: Financial Justice

Labor Department Gets on its Knees for Gig and Other Companies

Greenville       If the current administration remains in office in 2021, don’t be surprised if they float a proposal to move the Labor Department over to the Commerce Department as one of its smaller divisions.  These days with every new proposed rule they seem to see their mission as protecting business, not labor; bosses, not workers.

The latest example is a proposed “interpretative” rule, that would not have the force of law, like a regulation would, but would sow confusion and kowtow to certain employers and their lobbyists who have made diluting the tests to determine employment status a top priority.  This proposal is a pretzel twist to serve gig masters like Uber and Lyft, the ride-hailing outfits, as well as other companies employing cleaners, construction labor, home health workers, and maybe tipped workers.  Simply put, companies would rather not be bothered paying minimum wages, social security, and unemployment for their workforce.

Here’s how this mischief plays out.  There are a number of “tests” or criteria that employers, workers, and the unions, that represent them, and the courts, that try to sort it all out, use to determine whether a worker is an employee of a company or an independent contractor.  These elements include the degree of discretion a worker has, the degree of control the employer exercises over the work, whether a worker sets the wage and hours of their work, and things of this nature.  Weighing all these factors equally would establish whether a worker was an employee or a subcontractor.

The DOL wants to allow the employer and the giggers to put their whole fist on the scale.  They want to elevate two factors over all others.  First, the question of employer control of the work, and, secondly, some strange, new measure that would evaluate whether the worker has the opportunity to profit based on “initiative,” as opposed to simply a determined wage.

You might wonder, as I do, how in the world that could be easily measured?  Certainly, it is easy to see how this “interpretation” of employment status was written in all likelihood in the offices of the general counsels for Uber or Lyft.  They are losing a bloody fight now in California, so they are scarred and hardened veterans of this war.  The DOL tries to spin this new rule as a modernization of the changing pattern of work and development of gig work, because that is where the pressure came from, but it’s more than that.

A worker having “the opportunity to profit on initiative” also could be construed to cover almost all tipped employees!  Don’t think this is not an age-old argument for workers whose real money comes from gratuities, not the minimal tipped offset wage of a bit over $2 per hour. For forty years or more I’ve listened to workers in the service industry argue about whether something was a “job or a hustle,” with the employer furnishing the stage and setting, and the worker making their money in a performative role.

Nothing good will come of this DOL proposal.  It’s mayhem in the making!  When published, it will have a short 30-day window for public comment, much narrower than would be usual for such a major revision, but that’s because the DOL can see darkness at the end of the year.  These political appointees need to find new jobs working for the companies they have tried to serve with these proposals, so they want to get it done.

Best to nip this in the bud, rather than hope that the courts will do it later, since there are dark storm clouds on the horizon there in our future for sure.


The White House is a Bloody Mess

New Orleans     People literally don’t know what to do.  Random strangers will ask in social distanced lines at stores and gas stations, whether anyone knows what’s happening to the stimulus.  Will there be one?  When will it happen?  What are we supposed to do?

Being president used to be the benchmark that defined leadership in America and the world, like it or lump it.  Now it is unclear what we have other than a bloody mess.

Trump signed yet another executive order.  He held up the paper he signed while at one of his golf resorts.  This time about evictions and perhaps about some level of stimulus, possibly $400 per week.  Is this real?  Was it worth the paper it was written on?

Mark Meadows, the White House chief of staff, admitted it didn’t do much in the weekend news shows.  Nothing for local and state governments.  Nothing for testing.  Nothing here.  Nothing there.  Meadows, a former Congressman, reminded the interviewers that only Congress can appropriate money.

This was a big Peter to pretend to pay Paul move.  The money being moved was supposed to come from allocations already made to prepare for disasters, just as we read reports that this is supposed to be an unusually active hurricane season, particularly in the Atlantic.  Small comfort that.  The money is also contingent on states agreeing.  In what has to be a gratuitous move, the president said $400 with states paying $100 of that. Fat chance!  Louisiana, as just one example, reports that their unemployment trust fund is pretty tapped out with only enough to make the base payments, one of the lowest in the country, for another month or two, unless they get help from the federal government.  Tell, me friends, does that sound like money that can help you pay rent and make groceries?

Negotiations are at an impasse.  Speaker Pelosi believes she has a strong hand and lots of leverage.  She won’t take a partial deal, because with the election coming, she and the Democrats don’t believe there will be another stimulus effort this year, especially since the Republicans in the Senate are totally divided between the ones desperately facing re-election and the others trying to position themselves as the “new” Trump for the future.  She reminds Meadows to his face that as a former Freedom Caucus congressional deal disrupter, “he has never done a deal.”

Into this critically important negotiation, the president, Mr. Art of the Deal, becomes a rocket launcher firing at both sides and his own people.  What happened to the notion of leadership being to “bring the parties together,” “find common ground,” and give-and take?  Too old school, eh?  What happened to putting the people first, and the politics later?  No one in their right mind can think that this mess and mayhem brings voters your way some day, when Americans are desperate today.