June 25th, 2019 by WCBC Radio

Today, a group of 18 attorneys general sent a comment letter opposing the U.S. Department of Labor’s proposal to narrow the interpretation of joint employment, thereby complicating how states enforce labor laws and leaving millions of workers vulnerable to labor violations. 

In the letter, sent today to U.S. Department of Labor (USDOL) Secretary Alexander Acosta, the attorneys general challenge USDOL’s proposed change to joint employer status under the Fair Labor Standards Act (FLSA), an interpretation that governs the liability of an employer who shares with another employer control over the terms and conditions of workers’ employment.  The attorneys general contend that USDOL has failed to justify this new interpretation and draws on outdated analysis that does not consider the changing nature of today’s workplace relationships, including the fact that a growing number of businesses are changing organizational models by outsourcing integral functions but still maintaining control of workers. 

“If allowed to stand, the proposed rule would hinder our ability to enforce wage and hour laws while allowing businesses to outsource labor and liability,” said Attorney General Frosh.  “The proposed rule ignores employer relationships in today’s modern workplace, and would allow less accountability and less compliance with state and federal labor laws.”

Under USDOL’s proposed rule, joint employment would be determined by whether an employer hires or fires the employee, supervises and controls the employee’s schedule and working conditions, determines the employee’s rate and method of payment, and maintains the employee’s records.  The attorneys general argue this proposal is inconsistent with the purpose of the FLSA – to protect workers – and ignores more than 30 years of private sector development during which the economy and the workplace have changed.

Further, the attorneys general write that DOL’s proposed rule does not reflect today’s workplace relationships, where businesses increasingly share employees using third-party management companies, independent contractors, staffing agencies, or other labor providers.  By narrowing the scope of the joint employment, the DOL’s change will leave millions of w    orkers vulnerable to unchecked violations of federal and state labor laws.

If the federal standard fails to encompass companies that pay for subcontracted employees while also controlling the terms of employment, the attorneys general contend that gaps in legal compliance will inevitably increase, leaving workers at greater risk of exploitation.

In addition to Maryland, today’s comment letter was signed by the attorneys general of California, Connecticut, Delaware, the District of Columbia, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and Wisconsin.