[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6245 Introduced in House (IH)]
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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
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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 Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Upholding Worker Protections Act''.
SEC. 2. FINDINGS.
Congress finds that:
(1) Under the Fair Labor Standards Act (FLSA), an employee
can have joint employers who are both responsible, individually
and jointly, for complying with the law's minimum wage,
overtime, and child labor requirements.
(2) In adopting the FLSA, Congress established a broad
definition of ``employ'' to include ``to suffer or permit to
work''. In using this definition, Congress rejected the
narrower common law standard of employment, which turns on the
degree to which the employer has control over an employee.
(3) As the Supreme Court noted in United States v.
Rosenwasser, the FLSA's definition of employment is the
``broadest definition that has ever been included in any one
act''. The breadth of the FLSA's employment standard was
necessary to accomplish its goal of eliminating substandard
labor conditions.
(4) For decades, the Supreme Court and the Circuit Courts
of Appeals have effectuated Congress's intent to broadly define
employment, and thus joint employment, under the FLSA by
applying an economic realities test to determine whether the
employee is economically dependent on the potential joint
employer.
(5) On January 16, 2020, the Labor Department published an
interpretive regulation that seeks to significantly limit joint
employment liability under the FLSA.
(6) The Labor Department's interpretation conflicts with
the FLSA, congressional intent, and judicial precedent by
narrowly restricting joint employment to a question of control
and rejecting the economic dependence inquiry.
(7) In recent decades, many employers have increasingly
moved away from the direct hiring of employees and instead
engaged subcontracted workers, temporary workers, and used
franchisees, creating a ``fissuring'' of the workplace. Workers
in the fissured workplace often have lower pay and limited
benefits, exacerbating income inequality.
(8) As an interpretive regulation, this rule does not have
the force of law, but will dictate how and if the Department
will continue to hold employers accountable when they are
jointly liable for FLSA violations.
(9) The Labor Department's flawed interpretive rule could
increase wage theft and workplace fissuring by incentivizing
employers to outsource work to labor intermediaries and
subcontractors to avoid FLSA liability. Increased use of labor
intermediaries or subcontractors that are prone to inadequate
FLSA compliance would leave workers vulnerable to wage theft.
If such entities are thinly capitalized, workers may be unable
to recover any back pay owed.
(10) According the Economic Policy Institute, increased
wage theft and workplace fissuring under this interpretive rule
could cost workers more than a billion dollars each year.
SEC. 3. PROHIBITION ON IMPLEMENTING OR ENFORCING FINAL RULE ON JOINT
EMPLOYER STATUS.
Notwithstanding any other provision of law, the Secretary of Labor
may not implement or enforce the final rule on ``Joint Employer Status
under the Fair Labor Standards Act'' published by the Department of
Labor in the Federal Register on January 16, 2020 (85 Fed. Reg. 2820 et
seq.).
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