By Catherine Ruckelshaus, National Employment Law Project
This week, while all eyes in Washington were focused squarely on blockbuster congressional hearings, the Trump Labor Department has quietly begun to roll back some key worker protections.
President Trump’s promise to put America’s workers first has proven illusory, and this week’s actions are just the latest examples of how his policies harm working families. On Wednesday alone, the labor department announced three efforts to undermine the law that requires workers to be paid at least the minimum wage of $7.25 for the hours that they work, as well as overtime when they work more than forty hours per week.
First, Secretary of Labor R. Alexander Acosta told a congressional committee that the Department plans to issue a request for information involving last year’s overtime rule—which could represent the first step toward rescinding or revising the long-overdue rule that increased the salary threshold below which a “white-collar” employee is entitled to overtime pay after working more than forty hours a week. The prior overtime rule was last updated in 2004, and it permitted employers to exempt from overtime employees like retail and fast food managers earning as little as $23,660 annually. The new rule, enacted after exhaustive research, dozens of stakeholder meetings, and an assessment of over 270,000 public comments, doubles the salary level below which workers are guaranteed overtime, to $47,476 per year, using the same tried-and-true methodology that the Department has relied upon for decades.
The resulting rule is incredibly popular with the public, and it directly affects 4.2 million workers and strengthens the overtime protections of another 8.9 million workers who are already eligible for overtime. A controversial Texas district court opinion blocked the Department of Labor from enforcing the rule when it was challenged last year by some states and big business groups; that litigation is still pending.
So, with that in mind, what new “information” could the Department possibly need more than a year after the final rule was published? The answer is none. The Department’s move is likely meant instead to signal loyalty to businesses groups that always opposed the new salary threshold, and could be a prelude to an effort to water down the rule or even withdraw it.
The DOL also announced on Wednesday, with little fanfare, that it was withdrawing two “administrator’s interpretations”(“AI’s”) that provide guidance on how to apply the Fair Labor Standards Act to what are sometimes known as “fissured” employment relationships.
For example, workers in temp or staffing and contracted-out jobs, including janitorial work, agricultural work, the garment industry, and warehousing, may not always have a full understanding of who is responsible for their wages and working conditions, as their actual employer could be the company that pays them, the firm that placed them, or the business where they are working. If not clearly defined, these so-called “joint employment” arrangements can result in a lack of employer accountability, leading to low wages, wage-theft, and a host of other problems for workers, while undermining businesses that don’t cut the same corners. The Obama administration wage and hour division’s administrator’s interpretation on joint employment helped to address this problem by collecting and synthesizing long-standing and more recent cases and regulations to explain how the law is applied in multiple-employer working arrangements.
Another administrator’s interpretation from the wage and hour division on independent contractor status explained how the Fair Labor Standards Act defines “employee,” and collected leading cases to apply the long-standing terms to more modern-day examples. This AI cited those in construction, janitorial, on-demand, and home care fields as workers that are possibly misclassified, and was part of a Department-wide effort to combat independent contractor misclassification, a persistent scourge that carves out workers from basic protections, hurts law-abiding employers that play by the rules, and costs the federal and state governments millions of dollars annually in unpaid payroll taxes and insurance premiums.
These administrator’s interpretations were intended as compliance assistance to help employers and employees alike better understand their rights and responsibilities under the minimum wage and overtime law. Neither changed the law, but merely synthesized existing case law and regulations.
The Department’s decision to rescind these interpretations does not affect anyone’s duties or rights under the law—a point that has even been made by management-side lawyers. In fact, employers, workers, and advocates can still learn from these guidance documents and cite the cases that are discussed within each. But by pulling them off the Department’s website, the DOL has signaled to low-road employers that they may proceed with bad behavior unchecked. Workers, law-abiding businesses, and taxpayers will all suffer if these efforts to enforce and guide this key area of employment law fall away.
Author’s Note: You can still find PDFs of the rescinded administrator’s interpretations on NELP’s website, at: