That’s how one EPLI broker described the moment at which we’ve arrived in the US workplace.
Labor’s long, hot summer began with Supreme Court rulings in June that upheld subsidies for purchasing health insurance on the federal exchange and that legalized same-sex marriage, entitling all spouses to equal rights under federal and state law.
Then came the proposal from the Department of Labor to lift the ceiling under which employees qualify for overtime pay, or non-exempt status, to more than twice its current level.
That rule change would extend OT and the minimum wage to almost 5 million more workers in 2016, its first full year of implementation, the DOL said in July. The revision is at the core of tweaks being made to protections under the Fair Labor Standards Act, last updated in 2004.
Hot on the heels of this announcement, the DOL issued guidance on who is an independent contractor, really, that basically defined “most workers” as employees and therefore entitled to coverage under the minimum wage and overtime compensation rules.
By applying test factors other than degree of employer control, the guidance also effectively swept millions more under the protection of labor laws. Those workers include independent contractors, whose numbers have increased 14 percent to 10.6 million since 2001, according to Economic Modeling Specialists International.
The torrid pace of change continued, or culminated, in a decision by the National Labor Relations Board on Aug. 27, which appeared to steal a page from the DOL. In the case of Browning Ferris Industries, the NLRB adopted an expanded definition of “joint employer.”
Again, a government agency was taking aim at nontraditional work arrangements that have sprung up everywhere in recent decades, in franchising, subcontracting and outsourcing, and which the NLRB has said “insulate” companies from employer obligations—and place employees beyond the protection of labor laws.
“With more than 2.87 million of the nation’s workers employed through temporary agencies in August 2014, the Board held that its previous joint-employer standard has failed to keep pace with changes in the workplace and economic circumstances,” the board wrote in the BFI decision.
The NLRB’s move could prove more disruptive than expanding the definition of employees, which affects companies like Uber in the new “sharing economy.” Expanding the definition of employers, in effect, could rattle the enormous franchise industry, led by giants such as McDonald’s, that grew up under the Reagan administration.
But it’s the endless summer, right? A federal judge in California this week granted class action status to Uber drivers who are challenging their classification as independent contractors by the company. And the DOL is expected imminently to issue a request for public information on the use of mobile devices by non-exempt, or non-salaried employees, outside working hours …
How has more “pro-employee” change than occurred in decades managed to take place so quietly? It is the dead of summer, to be sure, and the GOP is struggling to prepare for a presidential race in which the partisan polemics have yet to get underway.
An even simpler reason may be the labor market itself. Just one indicator shows that real, inflation-adjusted wages for most Americans have been falling since before the Great Recession. Even before 2007, pay wasn’t keeping pace with increases in productivity, according to data from the Economic Policy Institute.
The workplace certainly is at an inflection point, maybe one in which the pendulum begins to swing the other way.
