[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6245 Introduced in House (IH)]

<DOC>






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

_______________________________________________________________________

                                 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.).
                                 <all>