Upholding Worker Protections Act

I 116TH CONGRESS 2D SESSION H. R. 6245 To prohibit the Secretary of Labor from implementing or enforcing the final rule on joint employer status. IN THE HOUSE OF REPRESENTATIVES MARCH 12, 2020 Mr. KENNEDY introduced the following bill; which was referred to the Committee on Education and Labor A BILL To prohibit the Secretary of Labor from implementing or enforcing the final rule on joint employer status. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Upholding Worker 4 Protections Act’’. 5 SEC. 2. FINDINGS. 6 Congress finds that: 7 (1) Under the Fair Labor Standards Act 8 (FLSA), an employee can have joint employers who 9 are both responsible, individually and jointly, for 10 VerDate Sep 11 2014 00:36 Mar 27, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H6245.IH H6245 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 6245 IH complying with the law’s minimum wage, overtime, 1 and child labor requirements. 2 (2) In adopting the FLSA, Congress estab- 3 lished a broad definition of ‘‘employ’’ to include ‘‘to 4 suffer or permit to work’’. In using this definition, 5 Congress rejected the narrower common law stand- 6 ard of employment, which turns on the degree to 7 which the employer has control over an employee. 8 (3) As the Supreme Court noted in United 9 States v. Rosenwasser, the FLSA’s definition of em- 10 ployment is the ‘‘broadest definition that has ever 11 been included in any one act’’. The breadth of the 12 FLSA’s employment standard was necessary to ac- 13 complish its goal of eliminating substandard labor 14 conditions. 15 (4) For decades, the Supreme Court and the 16 Circuit Courts of Appeals have effectuated 17 Congress’s intent to broadly define employment, and 18 thus joint employment, under the FLSA by applying 19 an economic realities test to determine whether the 20 employee is economically dependent on the potential 21 joint employer. 22 (5) On January 16, 2020, the Labor Depart- 23 ment published an interpretive regulation that seeks 24 VerDate Sep 11 2014 00:36 Mar 27, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H6245.IH H6245 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 6245 IH to significantly limit joint employment liability under 1 the FLSA. 2 (6) The Labor Department’s interpretation con- 3 flicts with the FLSA, congressional intent, and judi- 4 cial precedent by narrowly restricting joint employ- 5 ment to a question of control and rejecting the eco- 6 nomic dependence inquiry. 7 (7) In recent decades, many employers have in- 8 creasingly moved away from the direct hiring of em- 9 ployees and instead engaged subcontracted workers, 10 temporary workers, and used franchisees, creating a 11 ‘‘fissuring’’ of the workplace. Workers in the fis- 12 sured workplace often have lower pay and limited 13 benefits, exacerbating income inequality. 14 (8) As an interpretive regulation, this rule does 15 not have the force of law, but will dictate how and 16 if the Department will continue to hold employers 17 accountable when they are jointly liable for FLSA 18 violations. 19 (9) The Labor Department’s flawed interpretive 20 rule could increase wage theft and workplace fis- 21 suring by incentivizing employers to outsource work 22 to labor intermediaries and subcontractors to avoid 23 FLSA liability. Increased use of labor intermediaries 24 or subcontractors that are prone to inadequate 25 VerDate Sep 11 2014 00:36 Mar 27, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H6245.IH H6245 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 6245 IH FLSA compliance would leave workers vulnerable to 1 wage theft. If such entities are thinly capitalized, 2 workers may be unable to recover any back pay 3 owed. 4 (10) According the Economic Policy Institute, 5 increased wage theft and workplace fissuring under 6 this interpretive rule could cost workers more than 7 a billion dollars each year. 8 SEC. 3. PROHIBITION ON IMPLEMENTING OR ENFORCING 9 FINAL RULE ON JOINT EMPLOYER STATUS. 10 Notwithstanding any other provision of law, the Sec- 11 retary of Labor may not implement or enforce the final 12 rule on ‘‘Joint Employer Status under the Fair Labor 13 Standards Act’’ published by the Department of Labor in 14 the Federal Register on January 16, 2020 (85 Fed. Reg. 15 2820 et seq.). 16 Æ VerDate Sep 11 2014 00:36 Mar 27, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6301 E:\BILLS\H6245.IH H6245 pamtmann on DSKBC07HB2PROD with BILLS