'Bipartisan' Bill Would Graciously Let Workers Work For Less Than Minimum Wage!
If there is one thing we are not lacking in the United States of America, it is ironically titled laws governing labor that make it sound like they benefit the worker but in fact do not do that at all! We've got right-to-work (for less) laws that pretty much make it impossible to form a functional union, we've got at-will employment laws, confusing everyone into thinking that without such a "protection" it would be illegal to quit your job (people in other countries can quit their jobs!), and we've got so-called "paycheck protection" laws meant to kneecap unions by barring them from dues collections through automatic paycheck deductions. We are full-up.
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Earlier this month, Reps. Henry Cuellar (D-TX), Elise Stefanik (R-NY), and Michelle Steel (R-CA) introduced a bill called the Worker Flexibility and Choice Act (HR 8442). Like so many other bills that sound perfectly lovely and very pro-worker, this bill, if passed, would completely screw workers and completely undermine the very few labor protections we even have in this country.
But to be fair, before we delve in to what this bill would do, let's allow the sponsors a chance to explain it for themselves
“Today’s workers value independent work for the flexibility and economic opportunity it provides, yet too many restricting standards on independent work diminish freedom for workers and stifle these innovative work arrangements. The bipartisan Worker Flexibility and Choice Act will empower workers to choose the type of work that best fits their needs, while allowing businesses to offer workplace benefits traditionally only available to employees. I thank Congressman Cuellar for partnering with me on this bipartisan effort to support independent workers,” Stefanik said.
“Texas workers have expanded into the gig economy at rapid speed for the flexibility and opportunities that it provides. This legislation promotes that type of independent work,” Cuellar said. “The bipartisan Worker Flexibility and Choice Act is important to ensure that our gig economy has the room and resources to expand. Thank you to my colleagues, Congresswomen Stefanik and Steel for their commitment to supporting our modernizing American economy.”
“As workers and businesses across the country continue to experience labor shortages and the highest inflation in 40 years, finding ways to promote employment flexibility should be a top priority for Congress,” Steel said. “I’m proud to join Reps. Cuellar and Stefanik to offer this bipartisan solution to promote stable, flexible employment to help empower American workers and businesses to thrive.”
Nothing says "this is definitely good news" like a bunch of buzzword-heavy statements that don't actually tell you what the bill even does, eh? But in further detail, the press release claims that the bill will
- Ensure the worker retains the freedom and flexibility to accept or reject offers to provide their services, giving them control over when, where, and how much they wish to work.
- Promote worker freedom without infringing on certain workplace rights, including protections against discrimination, retaliation, and harassment.
- Allow the worker to engage with and provide services for multiple entities at any given time.
- Provide the worker a written summary of any health, pension, training, other benefits they may be eligible to receive.
None of that sounds too terrible, does it? Everyone loves freedom and flexibility and independence! And protections? Protections are great. Love protections.
This is not that. It is not any of that.
The Worker Flexibility and Choice Act is brought to you largely by the Coalition for Workforce Innovation (CWI), which is kind of like a supergroup of corporate interests that formed in the wake of California cracking down on independent contractor misclassification — ie, companies classifying workers who should have been classified as employees as independent contractors in order to skirt labor laws.
According to a report from the National Employment Law Project (NELP), the CWI's founding members include "the Retail Industry Leaders Association (RILA), digital labor platforms Lyft, TaskRabbit, Postmates, Hyr, and Forge, multi-level marketing (MLM) company Amway and MLM trade group the Direct Selling Association, global logistics conglomerate DHL, private insurance provider iWorker Innovations, and the corporate-backed U.S. chapter of the Association of Independent Professionals and the Self-Employed (ipse-U.S)" and now also "through direct or trade group membership include titans of industry like Amazon, Walmart, Target, Google, Apple, Microsoft, Meta (previously known as Facebook), Accenture, Kelly Services, Uber, FedEx, and XPO Logistics."
Hey! If you can't trust Walmart, Amazon, Amway, and the Direct Selling Association to be looking out for the best interests of America's workers, who can you trust? What could possibly be suspicious about a "worker's rights" law?
CWI is the same lobbying team that brought you California's no-good-very-bad, turned-out-to-be-unconstitutional Proposition 22, which sought to reclassify gig workers at Uber, Lyft, etc. as independent contractors instead of employees. This is a very similar proposal, though it largely seeks to create a "third way" in between "employee" and "independent contractor" called "independent workers," who would lack most of the protections of the former without the freedom of the latter. Where have we heard that term before? Oh, right, about 12 times in the statements above. One of the CWI's primary strategies has been trying to make the term "Independent Worker" happen.
The bill itself is more clear about what it would actually do. It would allow for the creation of "Worker Flexibility Agreements" between employee and employer which, while providing a few employee-esque protections against discrimination and retaliation ...
‘(1) IN GENERAL.—Except as otherwise provided in paragraph (2), with respect to any individual who has entered into a worker flexibility agreement, the requirements of subsections (e)(6) and (z) of section shall supersede all Federal, State, and local laws relating to wages and other monies paid, hours worked, documentation and recordkeeping, and applicable taxes, benefits, and contributions insofar as they may apply to the employment relationship between the individual and the entity covered under the worker flexibility agreement.
Basically what this means is that people would be allowed to sign away their right to the minimum wage and overtime, and that these agreements would supersede all national and local laws. It would not just apply to people who work in the current gig economy, either — it very well could eventually be expanded to include any other type of job. Walmart is involved with this for a reason.
"This bill would radically erode fundamental worker protections in the United States to the benefit of big corporations, allowing them to require workers to sign away basic rights as a condition of work," Rebecca Dixon, executive director of NELP, said in a statement. "The bill would also establish a second-tier employment class of disproportionately Black and immigrant workers working in arduous and underpaid jobs without minimum labor protections — growing poverty and racialized economic inequality."
There are already enough racist carve-outs in the Fair Labor Standards Act (FLSA) that were specifically designed to disparately impact people of color and immigrants to begin with — like, for instance, the fact that farmworkers don't get overtime and small farms are allowed to not pay the minimum wage. We don't need any more.
To be clear, there is nothing in this bill that would give workers anything that they could not have without such an agreement. There is nothing in the FLSA that is incompatible with any of this "flexibility" they are talking about. Not one damn thing is holding anyone back from offering that while also paying people at least the minimum wage and allowing for overtime if they earn it. It also doesn't help actual independent contractors and freelancers in any conceivable way. All it does is make it easier for employers to get away with paying people a subminimum wage and not paying them overtime.
As John Samuelsen, International President of the Transport Workers Union, explained in a statement, "if corporate interests were actually serious about workplace flexibility, you’d see them supporting the rights of their employees to have a say in what goes on in the workplace; paying people wages that keep up with the rising costs of living; and encouraging working parents to take time off to care for sick children."
Gig workers do need actual protections. They do not need this. None of us do! If Reps. Cuellar, Stefanik, and Steel would like to sponsor a law that would actually protect workers, perhaps they should consult some of them — as opposed to putting out a bill created by a lobbying group chock full of our nation's most dubious employers. That would certainly be a start.
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Robyn Pennacchia is a brilliant, fabulously talented and visually stunning angel of a human being, who shrugged off what she is pretty sure would have been a Tony Award-winning career in musical theater in order to write about stuff on the internet. Follow her on Twitter at @RobynElyse