OPINION:
We should know the rules before being responsible for complying with the rules.
President Biden appears to disagree with this bit of common sense. On his first day in office, he revoked former President Trump’s Executive Order 13892 prohibiting federal agencies from enforcing a rule without prior public notice of the legal standards that would be applied.
Why would Mr. Biden roll back transparency? It’s simple — to bring back “gotcha” enforcement. Without transparency and clear rules, he empowers his political appointees to make up rules as they go, impose new requirements without prior notice, and bring all the power of the federal government against unpopular industries, businesses and practices.
Recent examples: the Biden Department of Labor announced that it will revoke two crucial rules issued by the Trump administration — revoke but not replace — in favor of creating policy through enforcement. Gotcha!
The first rule is the joint employer rule, clarifying when two employers could be jointly liable to the same employee for a wage violation. The last time prior to the Trump administration that the department issued a joint employer rule was in the previous century, before the franchise model became ubiquitous. The Trump-era rule explained how joint employment applies in the franchise system. Instead of a clear rule, established in advance, the Biden administration will use enforcement to establish policy.
The second rule the Biden administration is revoking is the independent contractor rule. The independent contractor rule provided much-needed guidance on when a worker is a traditional employee under the FLSA or in business for him or herself. During the notice and comment period, independent contractors and freelancers themselves favored this rule by a margin of 20:1. Perhaps most importantly, the department had never — in 80 years — issued a formal rule on this topic, resulting in a great deal of confusion and uncertainty for employers, employees and independent contractors.
Now, the Biden administration seeks to revoke this long-needed rule in favor of developing the rules of the road through enforcement.
Which is better for employees: Using enforcement to establish policy or giving the public notice of clear rules? DOL’s enforcement data gives us the answer: Prior to COVID-19, the DOL’s Wage & Hour Division under Mr. Trump collected an average of $111.2 million more each year in back wages than it did during former President Obama’s first term, just as the George W. Bush administration collected more back wages per budget dollar than the Clinton administration.
Why? After all, most would assume Democrats would more aggressively enforce worker protection laws. Republicans focus enforcement efforts where clear violations of transparent law exist (and there is plenty of that to keep DOL investigators busy). In contrast — and as revocation of Executive Order 13892 allows — Democratic political leadership use enforcement to advance an ideological and social agenda.
We implore incoming Secretary of Labor Marty Walsh to remember that the executive branch is there to enforce obligations that are clear and transparent — not to use enforcement to make up new requirements.
• Cheryl Stanton served as DOL’s Wage & Hour Administrator during the Trump administration. Tammy McCutchen served in the same role during the George W. Bush administration.
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