David Weil’s nomination to be administrator of the Labor Department’s Wage and Hour Division has drawn opposition from the business lobby because the last time he had this job, during the Obama administration, he had the temerity to try to enforce the nation’s wage and hour laws. Earlier this week, I described how Weil attempted to revive enforcement of the overtime provisions in the 1938 Fair Labor Standards Act, or FLSA. Today I’m going to talk about how Weil sought to crack down on the illegal misclassification of employees as independent contractors, popularly known as gig workers.
In July 2015, Weil issued Labor Department “guidance” on worker misclassification. A guidance document is a more informal alternative to a regulation. It doesn’t require, as a regulation does, public posting before it’s finalized followed by a period of public comment. It is not, as a regulation is, legally binding. It’s just an informal statement of how a given agency intends to apply the law. Businesses find guidance documents extremely valuable in figuring out how to interpret laws that affect them.
The gig economy is a tricky area because some gig workers enjoy being classified as independent contractors; it grants them certain freedoms they wouldn’t have as employees. Other workers don’t especially like being classified as independent contractors...
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