An Expected Reversal in Employee Rights

The US Department of Labor last week withdrew its “2015 and 2016 informal guidance on joint employment and independent contractors.” On election night 2016, my first thoughts about how this unexpected electoral outcome would affect my clients, present and future, turned to these doctrines, which are so widely used and abused in the construction industries.

I had no doubt that the “job killing regulations” that were to be rolled back, however that was ultimately defined, would include the US DOL’s welcome (to my mind) application of the well-established economic realities test to the actual ways in which joint employment and the misclassification of employees as independent contractors occur in modern American workplaces.

But it is not clear to me how it disincentivizes hiring to hold employers to a uniform standard. As Seth Harris, former deputy secretary of the Department of Labor, noted, “Rescinding [the guidance] has no effect on the law of joint employment,” and, “[i]f anything, it makes it harder for employers, because they don’t know clearly what standards they should apply.” But logic and reason aren’t supposed to get in the way of making America great again.

Retraction Doesn’t Change the Reality of Misclassification

The former Administrator of the US Department of Labor astutely notes that the retraction of the guidance issued under his watch “changed nothing in terms of employer responsibilities — the law is still the law.” For now! But, he adds, “it did potentially signal an intention to move away from addressing worker misclassification as a fundamental problem worth addressing.” Yeah, I think it’s more that they’re saying it’s not a problem, and my guess is that we’ll see them say that in future amicus filings too.

Protect the Unwanted

The other great-again product of the last national election that looms large in my mind is not an employment matter, just a human rights catastrophe unfolding in real time, which we have not had the benefit of since the heydey of the Iraq War: the impending mass incarceration crisis of our own making as we attempt to detain and deport everyone in sight, our best response to the record levels of human migration that we have felt ripples of on our shores in recent years.

There is no good reason for the immigration enforcement system to imitate the corrections system that we use for violators of criminal law, other than corporate efficiencies and a thematic consistency with ongoing efforts to conflate unlawful presence with criminal illegality, but there are many good reasons not to do so.

Thus, I applaud the efforts of municipalities to help the members of their communities suddenly rendered vulnerable to such detention and to otherwise attempt to hold their communities together in the face of forces of division. Such efforts are especially welcome where the powers-that-be no longer hesitate to crack down on even those who only seek to aid immigrants when they are in distress.

Looking forward, funding the legal defense of immigrants facing detention and deportation should be the priority for anyone wondering how best to help in these turbulent times. The social costs of doing otherwise are simply too high.