SACRAMENTO – California Attorney General Xavier Becerra joined a coalition of 18 attorneys general in sending a letter to urge U.S. Secretary of Labor Eugene Scalia to halt implementation of the joint employer liability rule during the COVID-19 public health emergency. Implementing the rule threatens to limit the legal right of workers to collect wages they are due from a joint employer. Given the current crisis, many workers face a higher risk of losing out on the ability to collect back wages if an employer becomes insolvent and this rule leaves them unable to then turn to a joint employer for back pay. The workers most likely to be affected by the rule are those who are earning hourly wages; they are also the most likely to suffer from the economic effects of the COVID-19 pandemic in the form of layoffs and reduction of hours.
“With unemployment claims skyrocketing, our workers need every tool available to retain the wages they have earned,” said Attorney General Becerra. “There couldn't be a worse time to put the pay of hardworking Americans at risk. Our federal government must put working families front and center and we’re calling on Secretary Scalia to do his part.”
Earlier this year, Attorney General Becerra joined a coalition of 18 attorneys general in filing a lawsuit against the joint employer liability rule. In the lawsuit, the attorneys general argue that the rule’s definition of joint employer does not adequately reflect today’s workplaces, where growing numbers of businesses are outsourcing functions to third-party management companies, independent contractors, staffing agencies, or labor providers. The rule promulgated by the U.S. Department of Labor (DOL) reduces oversight of these employers by significantly narrowing the definition of joint employment, which will exacerbate the existing lack of accountability for some types of employers and put federal regulations out of step with the modern workplace. In the letter sent today, the coalition notes that the current health crisis will dramatically exacerbate the harms to workers under the rule.
Entities found to be joint employers can be held accountable for workplace violations against an employee even if the person is formally employed by another entity. However, the rule would make it much harder to establish joint employer liability. For example, under the rule, employers can attempt to avoid liability by simply asserting that, although they had the ability to exercise control, they did not in fact exercise it. In the lawsuit, the coalition further argues that the rule is an unreasonable interpretation of statute, that DOL does not articulate a satisfactory reasoned explanation for the rule, and that DOL lacks critical information and dismisses data and analysis assessing the impact of the rule on workers and joint employers. Although DOL’s rule will create harmful and unnecessary confusion, workers in California will continue to be protected by the state’s broad definition of an employer.
Attorney General Becerra is committed to protecting Californians and people across the country during the COVID-19 public health emergency. Last week, Attorney General Becerra called on Amazon and Whole Foods to step up efforts to protect workers by providing adequate paid sick leave. The Attorney General also called on Secretary of Education Betsy DeVos to use her authority to protect student borrowers during the COVID-19 emergency. He has also issued several consumer alerts, including one last week to warn Californians about fraudulent charities during the current public health crisis. Earlier this month, Attorney General Becerra urged the Trump Administration to halt implementation of the “Public Charge” rule, which could undermine public health efforts to combat COVID-19. The Attorney General also called on nine large online marketplace companies to intensify their efforts to tackle price gouging on their platforms in relation to COVID-19. For the latest on COVID-19 preparedness, please visit https://covid19.ca.gov/.
In sending the letter, Attorney General Becerra joins the attorneys general of New York, Pennsylvania, Colorado, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.
A copy of the letter is available here.