David Weil, head of the Labor Department’s Wage and Hour Division, once again has indulged his preference for ruling by decree instead of relying on rulemaking procedures that require public participation.
Weil unilaterally declared that most companies using staffing agencies are joint employers of temporary workers under federal wage and hour laws. Prime targets for DOL enforcement in this area are the warehouse and logistics, construction, agricultural, janitorial, staffing and hospitality industries, he said.
Days after Weil issued his declaration, a legal challenge was filed in federal appeals court seeking to overturn the National Labor Relations Board’s decision broadening joint employer status for temp staffers when it comes to union organizing elections.
Weil’s administrative fiat was issued on January 20 in the form of a 15-page “agency interpretation.” Because he claims his statement only interprets existing regulations, Weil holds it does not require going through the usual procedural steps, including consideration of public comments, which federal agencies must follow when developing new rules.
Last year a similar interpretation was issued by Weil declaring that the vast majority of independent contractors are in reality company employees under wage and hour laws.
“Protecting workers in fissured workplaces—where there is increasingly the possibility that more than one employer is benefiting from their work—has been a major focus for the Wage and Hour Division in recent years,” Weil writes in his most recent agency interpretation, while neglecting to mention that it also has been an obsession with the nation’s labor unions. “In a nutshell, joint employment exists when a person is employed by two or more employers such that the employers are responsible, both individually and jointly, for compliance with a statute.”