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.
