Tag Archives: workers

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.

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DOL Takes Paid Leave Away from Low Wage Healthcare Workers

New Orleans     This is complicated, so hang with me, but here is what you need to know.

  • Nursing home workers and other frontline healthcare providers like home health aides, and community home workers for the differently able account for perhaps the largest portion of the death count, as we pass 200,000 fatalities nationally from Covid-19.
  • Many of these workers are among the lowest paid service workers in the country.
  • A vast proportion of these workers are women and members of minority and ethnic groups.
  • Most of these workers do not have health insurance provided for them as employees and certainly not for their families.

Are you with me so far?  These are workers who need all the support we can give them during this pandemic.  Local 100 represents a bunch of these workers in Louisiana and other states.

Congress passed the Families First Coronavirus Response Act (FFCRA) earlier this year.  Among its many provisions there was an Emergency Paid Sick Leave Act (EPSLA) that provided two weeks of paid leave, reimbursed by the government to the employer, for workers forced to take off because of the virus, either to quarantine or for other reasons.   Given the paucity of benefits along these lines, this was literally a lifesaver for many lower waged healthcare workers in these facilities who usually had such skinny sick leave provisions that they would have been forced to work sick or hide symptoms, possible endangering themselves and the patients under their care.

A New York-based federal judge has struck down some of the Department of Labor regulations that determined eligibility and utilization of the leave.  Recently, the DOL issued new regulations for implementing Families First until the end of the year.  Some of what employers sought, the DOL fixed for them as a matter of simple clarification:  no paid leave, if no paid work; prior notice to employer required to take leave; and verification of sickness to employer.   More disturbingly, the new regulations expanded significantly the definition of “health providers” that would not be eligible for the paid leave.  Where before it was doctors, nurse practitioners, and emergency responders among others without whom there would have be no functioning healthcare system anywhere, now the DOL swept up everyone else in direct and indirect patient care and specifically enumerated nurses, LPNs, nursing home aides, home health aides, and others, all the way to lab techs that might be processing the Covid tests.

How is this not a forced-work provision for all of these workers on the frontlines?  The public can applaud and thank them, but for the vast majority, they will have to work – and work sick – to protect their paychecks, risking their own lives, their patients and clients, and the community itself, because of financial necessity.

Why is this a gift to employers?  We have all read stories of nurses being paid double and triple their normal wages to maintain staff ratios at hospitals.  Our union was able to negotiate pandemic pay for a number of these workers as facilities had to finally step up in order to staffed up.  No matter the intention of the policy to protect the healthcare system, the effect of the policy will be forced work, not healthcare to benefit employers, and certainly not workers or patients.

The DOL’s regulations added that nothing in this new rule, effective until the end of the year, would prevent a worker from taking leave under the Family Medical Leave Act, but of course there is a huge difference.  Families First paid for up to two weeks of leave, and FMLA is leave without pay.

This may have seemed complicated in the beginning, but now I’ll bet it is pretty easy to understand.

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