Biden administration issues rule that could curb ‘gig’ work

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By Dan Sears

The Labor Department on Tuesday issued a final rule that will force companies to treat some workers as employees rather than less expensive independent contractors, in a move that has riled business groups and will likely prompt legal challenges.

The rule is widely expected to increase labor costs for industries that rely on contract labor or freelancers, such as trucking, manufacturing, health care and app-based “gig” services.

Most federal and state labor laws, such as those requiring a minimum wage and overtime pay, apply only to a company’s employees.

Studies suggest that employees can cost companies up to 30% more than independent contractors.

The rule will require that workers be considered employees rather than contractors when they are “economically dependent” on a company.

It does not go as far as wage laws in California and other states that place even greater limitations on independent contracting.

Lyft and DoorDash said they did not expect the rule to change the way they do business. REUTERS

Business groups and Republican lawmakers strongly criticized the rule on Tuesday, saying it will cause millions of workers to lose opportunities to earn money and would create confusion that will spur costly litigation.

Sen. Bill Cassidy, a Republican from Louisiana, said in a statement that he would introduce a resolution to repeal the rule.

Cassidy said the rule would bolster labor unions’ efforts to increase their membership, as independent contractors and freelancers cannot join unions.

The rule replaces a regulation by Republican former President Donald Trump’s administration that had made it easier to classify workers as independent contractors.

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The new rule is likely to be challenged in court by trade groups and businesses.

Sen. Bill Cassidy said he would introduce a resolution to repeal the rule. AP

Under the Trump era rule, workers who owned their own businesses or had the ability to work for competing companies, such as a driver who works for both Uber Technologies and Lyft, could be treated as contractors.

The new rule is set to take effect on March 11.

Acting Labor Secretary Julie Su during a call with reporters on Monday said the misclassification of workers as contractors rather than employees particularly harms low-income workers who would benefit the most from legal protections such as a minimum wage and unemployment insurance.

“A century of labor protections for working people is premised on the employer-employee relationship,” Su said.

Acting Labor Secretary Julie Su said the misclassification of workers as contractors rather than employees particularly harms low-income workers. AP

Worker advocates and some Democratic officials praised the rule, saying it was necessary to ensure basic protections for workers.

“Worker misclassification also undermines law-abiding businesses that are forced to compete with dishonest employers who use misclassification to unfairly cut down on labor costs,” Rep. Bobby Scott, a Democrat from Virginia, said in a statement.

But according to some business groups, the rule tips the scales too far in favor of finding that workers are employees rather than contractors, which will deprive millions of workers of flexibility and opportunity.

“Making matters worse, the rule is completely unnecessary, as the Department continues to report success in cracking down on bad actors that are misclassifying workers,” Marc Freedman, vice president at the US Chamber of Commerce, said in a statement. He added that the Chamber, the largest US business group, is considering challenging the rule in court.

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Worker advocates and some Democratic officials praised the rule, saying it was necessary to ensure basic protections for workers. REUTERS

Potential impact on ‘gig workers’

The Labor Department has said the rule was designed to crack down on industries, including construction and healthcare, where misclassification of workers is common.

But its potential impact on app-based delivery and ride-hailing services, whose business models depend on contract “gig” labor, has garnered the most attention.

Chamber of Progress, a trade group that represents tech companies, said the rule could impact gig workers depending on how the Labor Department enforces it.

Reclassifying independent contractors as companies’ employees would negatively impact an estimated 3.4 million gig workers, resulting in $31 billion in lost income, the group said.

Companies including Uber and Lyft have expressed concerns about the rule but also have said they do not expect it to lead to their drivers being classified as employees.

CR Wooters, Uber’s head of federal affairs, said in a statement that the new rule “does not materially change the law under which we operate.”

The Biden Administration’s new rule is likely to be challenged in court by trade groups and businesses. AFP via Getty Images

“Drivers across the country have made it overwhelmingly clear – in their comments on this rule and in survey after survey – that they do not want to lose the unique independence they enjoy,” Wooters said.

Lyft and DoorDash in separate statements also said they did not expect the rule to change the way they do business.

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“The vast majority of Dashers already have a full- or part-time job or are primary caregivers, students, self-employed, or retired. That’s why they’re not looking for the structure, shifts, and hour demands of employment,” DoorDash said.

The Labor Department said it would consider factors such as a worker’s opportunity for profit or loss, the degree of control wielded by a company over a worker, and whether the work is an integral part of the company’s business to determine whether a worker should be classified as an employee or contractor.

Business groups have said the long list of factors that could determine a worker’s classification will create confusion and inconsistent results, which in turn could spur costly class actions alleging that workers were misclassified.

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