June 26, 2019

Warren, Colleagues Criticize DOL Proposal to Narrow Definition of "Joint-Employer" Under Fair Labor Standards Act

Proposal Would Allow Large Employers to Shirk Obligations Under Wage-and-Hour Law, Undermine Protections for Most Vulnerable Workers

Text of Letter (PDF)

Washington, DC - United States Senator Elizabeth Warren (D-Mass.), along with Senators Sherrod Brown (D-Ohio), Richard J. Durbin (D-Ill.), Health, Education, Labor and Pensions Committee Ranking Member Patty Murray (D-Wash.), Ben Cardin (D-Md.), Chris Van Hollen (D-Md.), Kirsten Gillibrand (D-N.Y.), Maggie Hassan (D-N.H.), Bernie Sanders (I-Vt.), Cory Booker (D-N.J.), Tammy Baldwin (D-Wisc.), Amy Klobuchar (D-Minn.), Ron Wyden (D-Ore.) and Kamala Harris (D-Calif.), today submitted a comment to the Department of Labor (DOL) expressing their strong opposition to the DOL's proposal to dramatically narrow the definition of "employer" under the Fair Labor Standards Act (FLSA), which would weaken wage-and-hour protections for workers all across the country. The senators' letter comes as the public comment period on the Department's proposal comes to an end.

For generations, federal law has defined employment broadly, allowing multiple companies to share responsibility for employment protections. As employers have increasingly used contracting, temporary staffing, and franchising arrangements to offload some direct control of employees, it is increasingly important that companies that share responsibility for workers are held liable for wage theft, child labor abuses, and other violations of federal wage-and-hour law.

In their comment to DOL, the senators argued that by narrowing the definition of employer under the FLSA to companies that "actually exercise" a strictly limited set of types of control-such as hiring and firing employees, controlling work schedule or conditions, and maintaining employment records-DOL's proposal would make it easier for massive corporations to shirk their obligations under federal wage-and-hour laws simply by outsourcing jobs to contactors or staffing agencies.

"The proposed interpretation would violate the language and intent of the Fair Labor Standards Act and weaken the enforcement of wage-and-hour protections on behalf of many the most vulnerable workers in the country, directly contradicting DOL's mission to 'foster, promote, and develop the welfare of the wage earners... of the United States,'" the senators wrote.

The senators strongly urged DOL to reverse course and withdraw the proposal.

"(E)nforcement of crucial wage-and-hour protections is unacceptably weak in the United States, and DOL should be at the forefront of the fight to better protect American workers," the senators continued. "Instead, this proposal takes the Department in the opposite direction, undermining wage-and-hour enforcement for millions of workers who are already faced with particularly poor job quality, low wages, unpredictable schedules, and precarious work."

Senator Warren has supported legislation to strengthen protections for employees under federal labor law. In addition, she has used public pressure to enforce ethics rules at the National Labor Relations Board (NLRB), and strongly opposed efforts by the NLRB to narrow its joint employer standard, which was reversed after the Senator raised concerns about a conflict of interest involving a board member.