The Biden administration doesn’t know when to take the L— especially in their efforts to undermine freelancing.
With the Big Labor-backed Protecting the Right to Organize (PRO) Act currently stalled in Congress and freelance foe David Weil failing to get his old Department of Labor gig back, shouldn’t they take a hint?
Sadly, they aren’t.
Biden’s Labor Department continues to wage their war on independent contracting. Why? They have a short window left before the midterms to make every American worker a unionized employee.
Biden Admin Ignoring Court Decision Restoring Trump IC Rule
By taking an ax to the Fair Labor Standards Act (FLSA) to make all workers employees, this administration is violating norms and dismissing economic trends favoring flexible work arrangements.
The Labor Department has ignored a March 2022 federal court ruling that deemed their withdrawal of the Trump-era independent contractor rule “unlawful.” Adding insult to injury, they’re appealing the decision.
The U.S. District Court for the Eastern District of Texas ruled the department violated the Administrative Procedure Act of 1946 by only offering a 19-day comment period on the “delayed” IC rule. Governmental agencies must allow 30-60 notice-and-comment periods.
The Coalition for Workforce Innovation et al. v. Walsh decision reads like this, “Having vacated the Delay Rule, the court turns to the Withdrawal Rule. Plaintiffs claim that the Withdrawal Rule is arbitrary and capricious, in violation of the APA. Again, the court agrees.”
It added, “In this instance, the court finds that the DOL failed to consider potential alternatives to rescinding the Independent Contractor Rule. Indeed, the DOL prohibited any comments on the issue.”
The Trump-era rule clarifies a worker’s status under the Fair Labor Standards Act making it easier to operate as an independent contractor. Leaning on an “economics reality” test, courts have interpreted worker status being assessed by several factors: “degree of control of work”; “the individual’s opportunity for profit or loss”; “the individual’s investment in facilities and equipment”; “the permanency of the relationship between the parties”; “the skill or expertise required by the individual; and “whether the work is “part of an integrated unit of production.”
Freelancers, including independent contractors, welcomed the reinstatement of the Trump-era rule. Biden and Democrats didn’t.
The Open Competition Center, a project of Americans for Tax Reform, warned the Labor Department to not tread down this road, writing, “President Biden is shaping labor policy in a way that will harm American independent contractors. Any rules the DOL promulgates should preserve the freedom and flexibility to work as an independent contractor.”
Biden Labor Dept. Not Representing Interests of Most Workers
The Biden administration pretends to represent all American workers, but caters to a small but shrinking share of the workforce: the 10.3% of Americans working union jobs.
Do a casual scan of Labor Secretary Marty Walsh’s and his department’s social media accounts. You’ll find no praise for freelancers— those who comprise 36% of the U.S. workforce. Observers will note, however, that Walsh and his department give unwavering support to public sector unions.
Why? Secretary Walsh agrees with President Biden that gig workers comprising the freelance economy are largely misclassified—a claim, in itself, that’s inaccurate.
“We are looking at it, but in a lot of cases gig workers should be classified as employees," Walsh said to Reuters last year. “These companies are making profits and revenue and I’m not (going to) begrudge anyone for that, because that’s what we are about in America. But we also want to make sure that success trickles down to the worker.”
Had the PRO Act passed Congress, Democrats and unions would have raked in billions—nearly $3 billion—per every two-year election cycle.
So much for being “pro-worker.”
Democrat Freelancers Not Being Heard By Party Leaders
Republicans freelance. So do Democrats. The latter, especially, feel unheard and dismissed by Biden, Walsh, and their party representatives.
If Congressman Henry Cuellar (D-TX) is to survive a primary challenge, he’ll be the last Democratic lawmaker standing who supports freelancing. Every other House Democrat has now voted in favor of the PRO Act.
Undoubtedly, independent contracting is bipartisan. It should be. If the Democrats fail to moderate here, they’ll continue to bleed voters.
Republicans absolutely can make inroads to these disaffected freelancers by supporting the “Fight for Freelancers” movement.
The future of work is freelance—including independent contractor work. That’s a hard pill for many on the Left to swallow because these workers are independent, fulfilled, and not needing unions to interfere on their behalf.
Under “The Great Resignation,” full-time workers are increasingly quitting their 9-to-5 jobs for high-paying contract work. One bullish estimate forecasts the freelance workforce growing to over 91 million members by 2028.
If Democrats continue to undermine independent contracting, it should cost them politically.